From Environmental to Ecological Law [1 ed.] 0367431084, 9780367431082

Table of contents :
Contents
List of tables
List of contributors
Foreword
Introduction
Part 1: Overview: from environmental to ecological law
1 The transformation of environmental law into ecological law • Massimiliano Montini
Part 2: Problems with contemporary law: two illustrative examples
2 The targeting of environmentalists with state-corporate intelligence networks • Peter D. Burdon
3 Ecological jurisprudence beyond Earth: toward an outer space ethic • Reed Elizabeth Loder
Part 3: Solutions in ecological law
4 Ecological law in the Anthropocene • Olivia Woolley
5 Restoring land, restoring law: theorizing ecological law with ecological restoration • Emille Boulot
6 Are rights of nature radical enough for ecological law? • Geoffrey Garver
7 Ecological jurisprudence and Indigenous relational ontologies: beyond the “ecological Indian”? • Kirsten Anker
8 Conjuring sentient beings and relations in the law: rights of nature and a comparative praxis of legal cosmologies in Latin America • Iván Darío Vargas Roncancio
9 Needs-based constraints in an ecological law transition • Carla Sbert
10 The potential of the trusteeship theory for Canadian public law and environmental governance • Stéphanie Roy
11 African eco-philosophy on forests: a path worth exploring for the implementation of Earth jurisprudence • Ngozi Finette Unuigbe
Part 4: Challenges in the transition to ecological law
12 Green(ing) legal theory: social logics and their re-formation • Michael M’Gonigle
13 Lawyers and ecological law • L. Kinvin Wroth
14 Learning sacrifice: legal education in the Anthropocene • Nicole Graham
15 Indigenous ecological knowledge and the transition to ecological law in the United States • Hillary M. Hoffmann
16 Practical pathways to ecological law: Greenprints and a bioregional, regenerative governance approach for Australia • Michelle Maloney
Index

Citation preview

“Environmental laws confer a green hue upon the ecologically destructive juggernaut that is industrial civilization, without affecting what drives it. This collection of essays explains why it is critical and urgent to transform legal and governance systems so that instead of legitimising the exploitation of Earth, they guide humans to fulfil ecologically beneficial roles within the community of life. More importantly, this book explores how to effect this vital transformation.” Cormac Cullinan Author of Wild Law: A Manifesto for Earth Justice “No more insightful book today explores how environmental laws fail us by addressing symptoms, “externalities,” not root causes. Grounding law upon ecological foundations can restore Earth’s community of life through a resilient order of evolved norms. This book is essential reading for everyone who struggles with climate disruption and biodiversity’s broken web of life.” Nicholas A. Robinson Former Chair of the IUCN World Commission on Environmental Law Executive Governor, International Council of Environmental Law Kerlin Professor Emeritus, Elisabeth Haub School of Law at Pace University “This book offers a stimulating and important perspective.” Edith Brown Weiss Former Chair of the World Bank Inspection Panel, Georgetown Law, Washington, DC

From Environmental to Ecological Law

This book increases the visibility, clarity and understanding of ecological law. Ecological law is emerging as a field of law founded on systems thinking and the need to integrate ecological limits, such as planetary boundaries, into law. Presenting new thinking in the field, this book focuses on problem areas of contemporary law including environmental law, property law, trusts, legal theory and First Nations law and explains how ecological law provides solutions. Written by ecological law experts, it does this by 1) providing an overview of shortcomings of environmental law and other areas of contemporary law, 2) presenting specific examples of these shortcomings, 3) explaining what ecological law is and how it provides solutions to the shortcomings of contemporary law, and 4) showing how society can overcome some key challenges in the transition to ecological law. Drawing on a diverse range of case study examples including Indigenous law, ecological restoration and mining, this volume will be of great interest to students, scholars and policymakers of environmental and ecological law and governance, political science, environmental ethics and ecological and degrowth economics. Kirsten Anker is Associate Professor at McGill University Faculty of Law. She is a member of McGill’s Economics for the Anthropocene (E4A) project, and Centre for Indigenous Conservation and Development Alternatives (CICADA). Peter D. Burdon is Associate Professor and Associate Dean (Learning and Teaching) at the Adelaide Law School. Geoffrey Garver teaches environmental courses at McGill University and Concordia University and coordinates law and governance research for the Leadership for the Ecozoic program (www.l4ecozoic.org), formerly the Economics for the Anthropocene Partnership (e4a-net.org). He has a PhD in geography and an LLM from McGill University and a JD from the University of Michigan Law School. Michelle Maloney (BA/LLB(Hons) Australian National University, and PhD Griffith University) is Co-Founder and National Convenor of the Australian Earth Laws Alliance (AELA), Adjunct Senior Fellow, Law Futures Centre, Griffith University; and Co-Founder and Director of the New Economy Network Australia (NENA). She advocates for systems change to move industrialized societies from a human-centered to an Earth-centered governance system. Carla Sbert is an independent researcher in Quebec, Canada. Born in Mexico, where she studied law at ITAM, she also holds an LLM from Harvard Law School and a PhD in law from the University of Ottawa.

Routledge Explorations in Environmental Studies

Riverlands of the Anthropocene Walking Our Waterways as Places of Becoming Margaret Somerville An Environmental History of Australian Rainforests until 1939 Fire, Rain, Settlers and Conservation Warwick Frost Daoism and Environmental Philosophy Nourishing Life Eric S. Nelson Ecological Law and the Planetary Crisis A Legal Guide for Harmony on Earth Geoffrey Garver From Environmental to Ecological Law Kirsten Anker, Peter D. Burdon, Geoffrey Garver, Michelle Maloney and Carla Sbert Climate Change Temporalities Narratives, Genres, and Tropes Edited by Marit Ruge Bjærke, Anne Eriksen and Kyrre Kverndokk For more information about this series, please visit: www.routledge.com/ Routledge-Explorations-in-Environmental-Studies/book-series/REES

From Environmental to Ecological Law

Edited by Kirsten Anker, Peter D. Burdon, Geoffrey Garver, Michelle Maloney and Carla Sbert

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Kirsten Anker, Peter D. Burdon, Geoffrey Garver, Michelle Maloney and Carla Sbert; individual chapters, the contributors The right of Kirsten Anker, Peter D. Burdon, Geoffrey Garver, Michelle Maloney and Carla Sbert to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-367-43108-2 (hbk) ISBN: 978-1-003-00125-6 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

Contents

List of tables List of contributors Foreword Introduction

x xi xiv 1

PART 1

Overview: from environmental to ecological law 1 The transformation of environmental law into ecological law

9 11

M A S S I M I L I A N O MONT I NI

PART 2

Problems with contemporary law: two illustrative examples 2 The targeting of environmentalists with state-corporate intelligence networks

23

25

P E T E R D . B U R DON

3 Ecological jurisprudence beyond Earth: toward an outer space ethic

40

R E E D E L I Z A B ET H L ODE R

PART 3

Solutions in ecological law 4 Ecological law in the Anthropocene O L I V I A WO O L L E Y

59 61

viii Contents 5 Restoring land, restoring law: theorizing ecological law with ecological restoration

76

E M I L L E B O U L OT

6 Are rights of nature radical enough for ecological law?

90

G E O F F R E Y GARVE R

7 Ecological jurisprudence and Indigenous relational ontologies: beyond the “ecological Indian”?

104

K I R S T E N A N KE R

8 Conjuring sentient beings and relations in the law: rights of nature and a comparative praxis of legal cosmologies in Latin America

119

I V Á N D A R Í O VARGAS RONCANCI O

9 Needs-based constraints in an ecological law transition

135

C A R L A S B E RT

10 The potential of the trusteeship theory for Canadian public law and environmental governance

147

S T É P H A N I E ROY

11 African eco-philosophy on forests: a path worth exploring for the implementation of Earth jurisprudence

164

N G O Z I F I N ET T E UNUI GBE

PART 4

Challenges in the transition to ecological law

177

12 Green(ing) legal theory: social logics and their re-formation

179

M I C H A E L M’ GONI GL E

13 Lawyers and ecological law

193

L . K I N V I N WROT H

14 Learning sacrifice: legal education in the Anthropocene

209

N I C O L E G R A HAM

15 Indigenous ecological knowledge and the transition to ecological law in the United States H I L L A RY M . HOF F MANN

223

Contents 16 Practical pathways to ecological law: Greenprints and a bioregional, regenerative governance approach for Australia

ix

237

M I C H E L L E M A L ONE Y

Index

252

Tables

8.1 Collision of cosmologies 8.2 Tectonic reading of the Rights of Nature

126 127

Contributors

Kirsten Anker is Associate Professor at McGill University Faculty of Law. She is a member of McGill’s Economics for the Anthropocene (E4A) project, and Centre for Indigenous Conservation and Development Alternatives (CICADA). Emille Boulot is an Australian lawyer with a bachelor of science and a master of environmental governance, now a PhD candidate at McGill University with the Leadership for the Ecozoic program. Boulot’s research examines adaptive governance within the practice of ecological restoration, engaging in the interface between ecosystems, science, community and governance. Peter D. Burdon is Associate Professor and Associate Dean (Learning and Teaching) at the Adelaide Law School. Geoffrey Garver teaches environmental courses at McGill University and Concordia University and coordinates law and governance research for the Leadership for the Ecozoic program (www.l4ecozoic.org), formerly the Economics for the Anthropocene Partnership (e4a-net.org). He has a PhD in Geography and an LLM from McGill University and a JD from the University of Michigan Law School. Nicole Graham is Associate Professor at the Sydney Law School, The University of Sydney. She teaches and researches in the fields of property law and theory, and legal geography and has written on the relationship among law, the environment and culture regarding property rights, natural resource regulation and the concept of place. Hillary M. Hoffmann is Professor of Law at Vermont Law School and the William H. McKinney Visiting Chair in Environmental Law at the Indiana University McKinney School of Law in 2020. She teaches classes in environmental, natural resources and Indigenous law, and her scholarship focuses on structural legal challenges facing Indigenous Americans. Reed Elizabeth Loder is Professor of Law at Vermont Law School where she has taught property law, environmental ethics, animal law and ethics, moral philosophy for professionals, and professional responsibility. Her writing is

xii

Contributors in environmental ethics (lately focusing on rights of nature), animal law and ethics (emphasizing wildlife), professional responsibility, and space ethics and law. She holds a PhD in philosophy and a JD.

Michelle Maloney (BA/LLB(Hons) Australian National University, and PhD Griffith University) is Co-Founder and National Convenor of the Australian Earth Laws Alliance (AELA), Adjunct Senior Fellow, Law Futures Centre, Griffith University; and Co-Founder and Director of the New Economy Network Australia (NENA). She advocates for systems change to move industrialized societies from a human-centered to an Earth-centered governance system. Michael M’Gonigle is Eco-Research Professor of Environmental Law and Policy (Emeritus), Faculty of Law, University of Victoria. Massimiliano Montini is Professor of European Union Law and Sustainable Development Law, University of Siena (Italy) and Co-Director of the Research Group R4S (Regulation for Sustainability). He is Vice-Chair of the Ecological Law and Governance Association (ELGA) and Life-Member of Clare Hall College, University of Cambridge (UK). Stéphanie Roy is a doctoral candidate at Laval University (Quebec City, Canada) in administrative and environmental law and was granted Pierre Elliott Trudeau Foundation and Fonds de recherche du Québec Société et culture scholarships in 2017. She is a member of the Quebec Environmental Law Center’s board of directors and also volunteers on its legal committee. Carla Sbert is an independent researcher in Quebec, Canada. Born in Mexico, where she studied law at ITAM, she also holds an LLM from Harvard Law School and a PhD in law from the University of Ottawa. Ngozi Finette Unuigbe is Professor of Environmental Law, Policy and Ethics at University of Benin, Nigeria, where she teaches environmental law. Her core area of research interest (among others) borders on the role of Indigenous peoples’ knowledge in the preservation of ecological integrity. Iván Darío Vargas Roncancio is a PhD candidate in the Department of Natural Resource Sciences at McGill University and a graduate fellow in the Leadership for the Ecozoic (L4E) program of McGill University and the University of Vermont; B.Laws, M.Sc bioscience and law (National University of Colombia) and M.A. (Duke). He is also Junior Specialist (CPPR-UC Davis), ethnographer (Everyday Peace Indicators-George Mason); Colciencias scholar andFLAS fellow (São Paulo). Interests include ecological law, Indigenous cosmologies, ethnography, Amazonia. Olivia Woolley is Associate Professor in Biolaw at Durham University Law School. Her research explores law’s role in addressing global ecological deterioration. Her monograph Ecological Governance (Cambridge University Press, 2014) proposes a governance system for socio-economic transition

Contributors

xiii

toward ecological sustainability. She also has research interests in law relating to renewable energy. L. Kinvin Wroth is Professor Emeritus and former President and Dean at Vermont Law School. He is an original member of the E4A Law and Governance Steering Committee. His teaching and scholarship have included regulating the marine environment, comparative Canadian and US law, the legal profession and the legal process.

Foreword

This fine collection of essays represents leading-edge scholarship in contemporary jurisprudence. Ecological law provides the framework or paradigm for our age, the Anthropocene. Rather than locating nature as ‘the other’ and disconnected from human systems as traditional environmental law does, ecological law is based on interdependence and the intrinsic value of all things. This puts it not only into competition with environmental law, but with the world’s civil and common law systems rooted in Western anthropocentrism. For this reason, we cannot simply add ecological law to the existing canon of legal disciplines and subjects. The case for ecological law goes to the heart of the global ecological crisis and fundamental assumptions, beliefs and values of Western culture. The dominant belief has been that humans are fundamentally different from other species and superior to them. Humans and their existence are considered as the most important and central fact of the universe. However, as the Covid-19 pandemic has reminded us, such a belief is profoundly wrong. Its manifestation in Newtonian mechanics, socio-economic development, human rights and law may have led to great advances in science, living standards and material growth, but at a huge risk. The ecological conditions that make such advances possible in the first place have been severely eroded. Humans, no matter how ambitious, cannot escape ecological reality. In his book The Age of Ecology (2014), Joachim Radkau describes the history of the global environmental movement from its beginnings in European romanticism of the late eighteenth century to the present day. The age of ecology began in the 1980s, when the dilemma of infinite growth on a finite planet became apparent. Ever since ecological thinking stands in opposition to the growth model of modernity. The ecological perspective maintains that social and economic development can only ever be sustainable if grounded in the integrity of Earth’s ecological systems and the intrinsic value of life. The new narrative of ecological interconnectedness has manifested itself within the entire spectrum of academic disciplines: quantum physics, system theory, biological and Earth sciences, moral philosophy, liberal theology, social sciences, economic theory, political ecology and legal theory. During the 1980s, legal activism in Germany promoted ecological law (ökologisches Recht) and the ecologicalization of the legal order (Ökologisierung der Rechtsordnung). Eventually, the

Foreword xv German Federal Government undertook a review of the constitution (Grundgesetz) to conclude, in 1989, that more public debate was needed before a radical change to the constitution could be made. This debate has consistently grown the world over and is now a matter of great urgency. The time is ripe for a shift from environmental to ecological law. Environmental law is rooted in modern Western law with its origins in anthropocentrism, dualism, individualism and utilitarianism. Shaped by anthropocentric, fragmented and reductionist characteristics, environmental law is not only blind to ecological interdependencies, but also politically weak as it competes with other, more powerful areas of law such as private property and corporate rights. As a consequence, the legal system has become imbalanced and unable to secure the physical and biological conditions upon which all life, including human life, depend. To overcome the flaws of environmental law, mere reform is not enough. We do not need more laws, but different ones that are integrated into the entire legal system. Ecological approaches to law are based on ecocentrism, holism and intra-/ intergenerational and interspecies justice. From this perspective, the law will no longer favour humans over nature and individual rights over collective responsibilities. Essentially, ecological law seeks to internalize the natural living conditions of human existence and in this way informs the entire spectrum of legal areas such as constitutions, human rights, property rights, corporate rights and state sovereignty. Ecological law is not really new. Its values and principles of safeguarding the natural environment have guided ancient cultures and Indigenous peoples in all parts of the world and are also part of the pre-industrial history of Western civilisation. After all, if previous generations had not been successful in maintaining at least a degree of sustainability, the present generation would not be here. It is important, therefore, to recognize history and continuity of ecological values and principles. They have also informed modern environmental law, albeit in a rudimentary form, hidden behind the dominant values of modernity (anthropocentrism, dualism, utilitarianism etc.). In contemporary legal scholarship, the values and principles of ecological law are expressed in ecocentric jurisprudence (e.g., rights of nature, Mother Earth rights, Earth law, eco-feminism and ecological legal theory), eco-constitutionalism and global law in the Anthropocene. Aptly entitled From Environmental to Ecological Law, this book shows how the transition can be achieved, both conceptually and practically. Klaus Bosselmann

Introduction

In June 2016, the Ethics Specialist Group of the IUCN World Commission on Environmental Law adopted the Oslo Manifesto for Ecological Law and Governance. Noting the failure of environmental law to halt ecological degradation and acknowledging ecological approaches to law inherent in many Indigenous legal traditions and in some areas of environmental law, the signatories of the Oslo Manifesto committed to developing a framework for, and expanding the reach of, the emerging field of ecological law. The manifesto gave birth to the Ecological Law and Governance Association (ELGA) as a platform and clearinghouse for worldwide efforts to conduct research on and promote the need for ecological law as an “ecological alternative to business-as-usual law and governance” (ELGA 2016). This edited volume is an early effort to advance the manifesto’s call for well-reasoned development of ecological law. True to the global scope of the effort to develop ecological law, it includes chapters by jurists from Australia, Canada, Colombia, Italy, Nigeria, the United Kingdom and the United States, among them coauthors of the Oslo Manifesto and members of the ELGA Steering Committee. As Klaus Bosselmann, the first Chair of ELGA and a leading pioneer in ecological law, notes in his Foreword, ecological law is arising not merely as a needed response to the failures of environmental law, but more broadly as a comprehensive new approach that embeds ecological thinking and approaches in every aspect of law and governance. This “ecologicalization” of law involves a rejection of growth-driven economics, anthropocentrism, reductionism, human-nature dualism, utilitarianism and individualism as dominant concepts in law, in favor of ecocentrism, holism, systems-thinking, human-nature interdependencies and human-inclusive ecological integrity. Ecological law that gives emphasis to these alternative concepts resonates, as the Foreword suggests, with other legal concepts that are on the rise, such as Earth jurisprudence, Wild Law, Earth law, ecoconstitutionalism and rights of nature.

A synopsis of the book This book aims to contribute to a more detailed understanding of what ecological law and the shift to ecological law mean. We first present an overview of the

2

Introduction

need to shift from environmental law—or, more broadly, contemporary law as a whole—to ecological law. The subsequent two chapters then analyze two littleknown but highly revealing examples of the problems with contemporary law to which ecological law responds. Following these, a series of chapters engage with ecological law as a solution to the failures of contemporary law; that is, they consider various ways in which ecological law might or should evolve so as to respond adequately to the interrelated ecological and social crises that contemporary law has failed to address effectively. We end the book with several chapters that present proposals for overcoming some of the key challenges in the transition from contemporary law to ecological law. Massimiliano Montini starts off the book in Chapter 1 with a broad overview of the need to shift from contemporary law, in which environmental law is firmly embedded, to ecological law, which is built on new or rediscovered paradigms and models based on a holistic cosmovision. In light of the failure of environmental law to achieve problem-solving effectiveness, assessed with reference to the degree to which ultimate goals underlying the law are achieved even where technical legal compliance exists, he explains the need to shift from a focus primarily on rights to one more inclusive of both rights and responsibilities. Montini highlights three key features of this new paradigm: a commitment to ecological integrity as a core building block of protection of nature, a human-inclusive ecocentric approach in lieu of the anthropocentrism of contemporary law, and respect for all life instead of human domination of nature. Chapter 2 is the first of two illustrations of how deeply embedded are the anthropocentric and economized worldviews underlying contemporary law. Peter D. Burdon examines in this chapter the joint efforts of government and private corporations in Canada and Australia to infiltrate and spy on environmental organizations that they suspect of targeting mining and other development projects, and the ways in which these interventions support a prevalent form of neoliberal rationality in which people, places and nature are viewed through an economic lens. He explains how this state-sanctioned apparatus both reflects the broader orientation of economic development and the law that supports it, and impedes ecological law, with its relational vision of people, places and nature as interdependent and its much broader understanding of what things are public and held in common. In Chapter 3, the second of these two illustrations, Reed Elizabeth Loder shows how the problematic features of contemporary law to which ecological law responds extend, literally, into outer space. As she explains, the US Space Act of 2015 permits private companies in the United States to claim property in material extracted from celestial bodies, perpetuating flawed ideas of exclusive ownership, ignoring treaty commitments to the celestial commons and expanding an ethic of human dominance. Noting that this approach belies needed ecological virtues of gratitude, humility and benevolence, she calls for a space ethic for valuing the non-living and living. The space domain helps illuminate the reach of the new paradigm of ecological law because it requires a “stranger ethic” in light of the lack of the attachments that foster place-based ethics on Earth. She asserts that a

Introduction 3 space ethic should connect the universe with personal experience, just as some Indigenous stories depict the stars as kin. This chapter reveals that a space ethic can foster an improved ethic on Earth in support of ecological law. Chapter 4 is the first in a series of chapters that explain various ways in which ecological law is intended to provide solutions to the failures of contemporary law, including environmental law. In this chapter, Olivia Woolley asserts that ecological law involves imposing obligatory responses to warning signals that come not from the economy, as with much of contemporary law, but rather from the ecosystems in which social systems and the economy are embedded. Taking a systems-based approach that accounts for the complexity and irreducible uncertainty around how ecosystems function and respond to human activity, she explains that ecological law involves relying, with appropriate precaution, on knowledge about early signs that human activity is creating a risk that ecosystems essential to human and other life are undergoing undesirable changes. Because the Anthropocene symbolizes the global nature of the ecosystem changes that humanity is causing, she calls for international cooperation in responding to known risks of undesirable ecosystem change, with a focus on maintaining ecosystem resilience, as an integral part of ecological law. In Chapter 5, Emille Boulot examines how the theory and practice of ecological and eco-cultural restoration provide important guidance for the development of ecological law. At the heart of her analysis is the notion of reciprocity, and the restoration of a reciprocal relationship between humans and more-than-human nature, as core ideas in ecological law. By focusing on the theory and practice of restoration, in which goal-oriented intention is axiomatic, Boulot highlights the normative goals, such as a mutually enhancing relationship between humans and more-than-humans, toward which ecological law and governance is oriented. Drawing from ecological and eco-cultural restoration also serves as a reminder that ecological law is place-based and pluralistic and will be well served by placebased knowledge holders, such as Indigenous peoples, beyond the technical experts and Western scientists who prevail in environmental law. In Chapter 6, Geoffrey Garver asks whether rights of nature, which are often associated with the emergence of ecological law and Earth jurisprudence, are radical enough for ecological law in the long term. Because they retain remnants of anthropocentric legal systems, particularly in focusing on rights and framing rights of nature in terms of personhood for nature, rights of nature fall short of the human-inclusive ecocentrism at the core of ecological law. Further, this framing places rights of nature at risk of erosion as they face off against other rights. Although rights of nature are useful as a transitional tool that highlights inadequacies of contemporary law, Garver proposes that giving naturehood to people—a concept with virtually no currency in contemporary law—better frames the ecocentrism and place-based nature of ecological law. Building on the analysis in Chapter 5, he offers eco-cultural restoration and Indigenous legal traditions as sources for further developing the concept of legal naturehood for people. Noting that a turn to Indigeneity, as in the preceding two chapters, is a common theme in foundational texts and moments in the development of ecological

4

Introduction

law, in Chapter 7, Kirsten Anker worries about the risk of falling into archetypes or myths of the “ecological Indian.” In tracking the debate about sustainability and conservation in anthropology and ethnobiology, she challenges scholars and proponents of ecological law to engage with Indigenous knowledges in a way that embeds knowledges in the polities and legal orders of Indigenous peoples and is sensitive to the complexities of the cosmopolitics involved in negotiating understanding and action across different lifeworlds. This certainly means contending with the colonial context in which Indigenous knowledge in relation to “the environment” emerges, and situating Indigenous peoples themselves as key actors in the move to ecological law; it may also mean questioning or recalibrating key concepts such as ecocentrism or ecological integrity. Offering what is at once another examination of the rights of nature and a deep engagement with Indigenous legalities, in Chapter 8 Iván Darío Vargas Roncancio turns to Latin America, where recent norms and judicial decisions have placed life at the center of the legal discourse. His critique uncovers two assumptions: that the law is a system of norms made by humans to regulate human conduct in relation to an externally existing natural world; and that the form of the law is primarily linguistic or propositional, that is, only human. He asks in what sense, then, does conjuring other-than-human beings as agents of legal meaning, rather than mere recipients of state-sanctioned rights, transform what we mean by law and rights of nature in Latin America? In Chapter 9, Carla Sbert considers whether a needs-based constraints approach should be adopted to support a transition from current ecologically unsustainable and inequitable societies to ones that are ecologically just, for humans and other beings today and into the future. She shows that ecological law theory supports constraining human activities not only within ecological limits, but also within the bounds of human needs. Sbert discusses how the meaning of needs could be determined, and how needs-based constraints could be articulated in affluent societies, as an important part of the transition from current law (environmental and other) to ecological law, and from accumulation to sufficiency. In Chapter 10, Stéphanie Roy explores the potential of the trusteeship theory— suggesting a governance model that would allow the State to adopt a holistic approach to nature management and to consider the interests of future generations—for Canadian public law and environmental governance. The chapter argues that the theory draws on concepts that already exist in Canadian public law, and it brings to light perspectives that make it appealing in Canadian public law and environmental governance, building on the experience with, and critiques of, the American public trust doctrine. Roy suggests that imposing duties of environmental protection on the government could set out a path for addressing the mounting ecological challenges of the Anthropocene. In Chapter 11, Ngozi Finette Unuigbe invites ecological law to consider following the path of African eco-philosophy on forests. She argues that Africa has different cultures that have helped to shape positive moral attitudes toward the natural environment and its human and nonhuman components, recognizing the interconnectedness and interdependence of all beings and the more-than-human

Introduction 5 world. The unity of the whole establishes an ethical obligation for human beings toward all parts of nature. Unuigbe argues that African and other concerned scholars should critically study African traditional thoughts, especially on forests (recognizing its limitations), and identify and co-opt its positive elements that can enable humanity to save Mother Earth and its inhabitants, especially from the ravaging impacts of climate change. The remaining chapters focus on the transition to ecological law, which is still mostly theoretical. Indeed, to the extent that full implementation of ecological law involves a profound shift in prevailing worldviews, the challenge of transition can be daunting. Within these chapters are seeds of hope in the form of details and concrete proposals on how this transition might happen. Michael M’Gonigle starts this discussion in Chapter 12, using green legal theory (GLT) to illustrate how deeply into current power structures and legal institutional frameworks and processes a movement of transition toward ecological law must cut in order to be truly transformational and re-constitutive. M’Gonigle suggests that the intentionalist premises of liberal legalism underlying modern law creation and reform must give way to the transformation of the larger “social laws” that emanate from nonhuman “animations”—such as corporations—for the needed transition to occur. In Chapter 13, L. Kinvin Wroth highlights the role that lawyers must play in any transition from environmental law and all of contemporary law to ecological law. In legal representation and adjudication, lawyers can analyze and critique current law and argue for its application, interpretation and revision in light of evolving ecological values. As legislators, they can revise old laws and enact new ones that the move to an ecological future requires. Lawyer planners can articulate the new ideas and design the new structures for that future. In the legal academy, lawyers can define the new vision in their scholarship and inspire a new generation of lawyers to carry it out. Wroth uses examples involving the marine environment to illustrate these points. Nicole Graham takes a deep look in Chapter 14 at the role of the academy and of legal educators in the transition toward ecological law. She highlights the important role of legal education in reproducing the knowledge and skills used by generations of legal professionals and policymakers to legitimate and prohibit economic and social relations and practices. Noting that law currently prescribes a relationship between the human and more-than-human worlds that is unsustainable, Graham advocates for transformational approaches to legal education that will enable law graduates to support, through their professional contribution, a just transition to an environmentally viable future before critical tipping points in the global Earth system are reached. In Chapter 15, Hillary M. Hoffmann examines how Indigenous legal traditions reflected in tribal laws might provide seeds for the transition to ecological law in the United States. She notes that on tribal lands, ecological law principles are reflected in tribal laws governing natural resource use and management, as well as ecological protection. However, outside tribal lands, legal and jurisdictional boundaries limit the extent to which Indigenous ecological law principles are used to protect ecosystems, species and the broader global climate. Hoffmann

6

Introduction

describes how one tribal coalition has found a way to work around these barriers using unique natural resource collaborative management agreements, which have provided a means of returning Indigenous knowledge of ecosystems and ecological history to the Bears Ears region in Utah. She explores the history of the Bears Ears model and the potential for tribal ecological knowledge it holds, and she argues for a similar model in ecological law. Michelle Maloney closes the book with an overview of one practical civil society initiative in Australia, Greenprints, that engages communities in discussions about ecological law and governance, so that a broad movement of people can understand and advocate for a transition to ecological law. Just as “blueprints” guide careful construction of engineering and building projects, “greenprints” help guide industrialized societies to transition to regenerative economies and communities, within healthy ecological limits. The Greenprints program implements a step-by-step guide to 1) help communities understand ecological limits and planetary boundaries; 2) understand the unique ecology and healthy limits of their local bioregion and community ecosystems; 3) analyze past, present and possible future human economic activity within their bioregion (including land use, consumption, production, carbon and other emissions and so on); and 4) develop bioregion-specific strategies for transitioning to new, regenerative economic systems that are supported by ecological law and ecological governance. One lacuna in this volume is an account of the valuable contribution of feminist and gendered perspectives in the transition from environmental law to ecological law. Philosophers and historians of science and the rationalist tradition, like Carolyn Merchant (1980), Val Plumwood (1993) and Donna Haraway (2016), have persuasively helped us see the gendered aspects of the domination and abstraction of nature through technocratic empiricism; their work intrinsically forms an important part of the foundational philosophies of ecological law’s critique of modernist thinking. Feminist politics has championed inclusive praxis across—even because of—difference, and provides useful models and pathways for participatory democratic initiatives in ecological governance that encourage collaborative epistemic negotiation and maintain a critical eye on the epistemic authority of conventional scientific discourse (Code 2006). Finally, ecofeminist arguments for an environmental ethic based on empathy, affinity, kin-making and care (see also Puig de la Bellacasa 2011) insist on an important affective dimension to what can, still too readily, remain an overly intellectualized discourse.

The path ahead The chapters in this book each offer provocations and guidance on how to transform our law and governance for that great work that lies before us. This work is part of a broader shift that can be discerned in culture, theory, politics and literature. It bubbles to the surface, for example, in the youth-led climate movement; in the accumulation of legal instruments referring to the rights of nature,

Introduction 7 including the Draft Universal Declaration of the Rights of Mother Earth in 2010; in the burgeoning post-humanist turn across academic disciplines; in the immense popularity of biologist Robin Wall Kimmerer’s writing about a “grammar of animacy” that describes kinship and gift relations across species; in revelations from forest ecology about underground mycorrhizal networks that connect individual trees to the broader forest community, among other examples of symbiotic, rather than competitive, relationships between beings; and in the pioneering work of the late Polly Higgins to establish the crime of ecocide in international law (Higgins 2016). Each of these examples, Amitav Ghosh notes, seeks “to recognise something we had turned away from: that is to say, the presence and proximity of nonhuman interlocutors” (2016, 30). One “nonhuman interlocutor” that needs to be factored into the path ahead is the virus that has given us COVID-19 and the likelihood of similar pandemics in the future. This event, still unfolding at the time of writing, reveals in profound ways how our embeddedness in nature can also make us vulnerable. It has also shown that governments are capable of acting with reference to scientific evidence and that neoliberal economics is not an immutable law of nature. Federal governments can go into a deficit to fund public spending, planes can disappear from the skyline, our definition of who constitutes an “essential worker” can change and those in need can be housed and fed. This has not been a universal experience, but it is common enough to give one pause to think that things can be different. Moreover, there is also evidence that coronavirus will make us more conscious of the need for broader change. For example, Kate Reynolds, professor of psychology at the Australian National University, argues that having faced one existential threat, people may become emboldened to think that we can confront another: Covid showed us a few things. It showed that people’s attitudes and behaviours can change. We had leadership, crafting a sense of who we are and what we should do and how we should act in the interests of ourselves and our communities. Call it a social identity, a sense of shared social identity, and a common cause. Things that seemed hard before Covid—in making profound changes in the way we went about our lives—proved possible. (Seccombe 2020) If people come to possess a greater sense of the efficacy of their individual and collective actions, it will be harder for governments to vacillate or delay their response to existential threats like climate change and biodiversity loss. From this perspective, what the coronavirus crisis reveals is that when it comes to the big issues, none of us are safe unless we all are. And that requires that we radically expand our sense of moral community so that the worth of each component is made essential. This is where the core contribution of ecological law lies: to imagine a legal future that is staked neither on the management of natural resources for the short-term gain of some, nor the false choice between human interests and the environment, but on a negotiated terrain of mutual flourishing.

8

Introduction

References Code, L. 2006. Ecological Thinking: The Politics of Epistemic Location. Oxford: Oxford University Press. ELGA. 2016. “Oslo Manifesto for Ecological Law and Governance. From Environmental Law to Ecological Law: A Call for Re-Framing Law and Governance.” Ecological Law and Governance Association. www.elga.world/oslo-manifesto/. Ghosh, A. 2016. The Great Derangement. Chicago: University of Chicago Press. Haraway, D. 2016. Staying with the Trouble: Making Kin in the Cthulucene. Durham, NC: Duke University Press. Higgins, P. 2016. Eradicating Ecocide: Laws and Governance to Stop the Destruction of the Planet, 2nd ed. London: Shepheard-Walwyn. Merchant, C. 1980. The Death of Nature: Women, Ecology, and the Scientific Revolution. New York: Harper & Row. Plumwood, V. 1993. Feminism and the Mastery of Nature. London: Routledge. Puig de la Bellacasa, M. 2011. “Matters of Care in Technoscience: Assembling Neglected Things.” Social Studies of Science 41, no. 1: 85–106. Seccombe, M. 2020. “Bushfire Hearings Spotlight Climate Change.” The Saturday Paper, May 30–June 5, 2020. www.thesaturdaypaper.com.au/news/politics/2020/05/30/ bushfire-hearings-spotlight-climate-change/15907608009902.

Part 1

Overview From environmental to ecological law

1

The transformation of environmental law into ecological law Massimiliano Montini

Introduction: the ecological crisis and the responsibility to act Human activities are damaging the ecological foundations of life (UN Environment Programme 2019; IPCC 2018). We are currently facing a broad and comprehensive global ecological crisis. It includes the climate change crisis, the loss of biodiversity crisis and more generally the global tendency toward progressive impairment of the health and integrity of the ecosystems that support life on the planet (Montini 2014). In the Anthropocene humanity is called to recognize its responsibility to act in order to address this global ecological challenge, leaving behind old paradigms and models and moving toward a new legal approach to human development in harmony with nature (Kim and Bosselmann 2013; Bosselmann 2016; ELGA 2016; Aragão 2016; Kotzé 2017; Viñuales 2018). The starting point must be the awareness that the age of rights, which has characterized our society so far, must be substituted by a new age where rights are paired with responsibilities (Bosselmann 2016). The age of rights, based on the assumption that humans have an inherent right to dominate nature, has stretched its boundaries to justify the massive exploitation of natural resources, the massive pollution of the environmental media and the progressive destruction of the ecosystems. The new age of rights and responsibilities must be characterized by a completely new approach, underpinned by a new holistic cosmovision, according to which humans are an inherent part of the ecosystems in which they are placed. In such a context, humans should strive to achieve a “mutually enhancing humanEarth relationship” (Berry 1999). Therefore, protecting the health and integrity of ecosystems by taking care of “our common home” ought to be the absolute priority for all human activities (Pope Francis 2015; Montini and Volpe 2019). This is because there cannot be any sustainable form of socio-economic development that ignores the inherent ecological thresholds represented by the need to respect planetary boundaries (Rockström et al. 2009a; Rockström et al. 2009b; Rockström et al. 2013; Steffen et al. 2015). Humanity should not aim at promoting infinite economic growth. It should rather aim to flourish within the “safe operating space” given by the finite state of the planet (Garver 2013; Jørgensen et al. 2015; Steffen et al. 2015; Magalhães et al. 2016; Raworth 2017; Wackernagel et al. 2017; Garver 2019).

12

Massimiliano Montini

The role of environmental law and its double failure What is the role of environmental law in the context of the global ecological crisis? This is a crucial question that is often ignored or underestimated. Law plays a pivotal role, in that determination of what is or is not “legal” conduct tends to shape the behaviors of citizens and companies, irrespective of their moral convictions. Law is not “neutral” to the kind of human development that a given society pursues. This has been well explained by the legal philosopher Westerlund in his studies on law and sustainability. According to Westerlund, “unless law is made sustainable, it will protect unsustainable conducts” (2008, 54). Since law is greatly influencing and steering human behaviors, if our society wishes to address the ecological crisis and promote sustainable patterns of development, it needs to embrace a new legal approach to the protection of the environment. The key challenge in this new approach must be to protect the health and integrity of ecosystems as a prerequisite for any sound path of sustainable development for humanity (Garver 2013; Bosselmann 2016; Garver 2019). If society fails to steer the course and direction of human activities toward sustainable development patterns that recognize the necessity to primarily address the ecological crisis, it will inevitably support unsustainable conducts that may eventually lead to the sixth mass extinction of planetary life, including possibly humans (Kolbert 2014). Once the role that law might play for addressing the current ecological crisis is ascertained, it should be determined whether environmental law, as it stands, is able to deliver a proper response to the present challenge. To this effect, it is necessary to consider the question of the legal effectiveness of environmental law (Montini 2017). This question can be analyzed through the conceptual framework originally proposed by Bodansky (2010), on the basis of Young’s research on the meaning of effectiveness in international governance (1994). Bodansky’s framework was originally conceived to analyze the effectiveness of international environmental law, but it represents an appropriate instrument to assess, by analogy, the effectiveness of environmental law in general, irrespective of the international, supranational or national level concerned (Montini 2017). This reference framework distinguishes among three different meanings of the term effectiveness, namely legal effectiveness, behavioral effectiveness and problem-solving effectiveness. In such an analytical context, the first meaning, legal effectiveness, refers to the formal compliance with a certain given norm. It aims at assessing whether certain behaviors conform with a requested prescription set by the law, seeking the assessment of a formal understanding of the term legal effectiveness. The second meaning of the term, behavioral effectiveness, focuses on the capacity of a certain prescription to give rise to behavioral changes from the point of view of the addressees of a certain legal prescription. In this case, effectiveness is analyzed with respect to the capacity of a certain norm to produce a visible change in the targeted behaviors. The third meaning, problem-solving effectiveness, deals with the capacity of a given norm to contribute to the achievement of the ultimate environmental objective of a given prescription, that is, to concretely address the environmental problem at stake.

The transformation of environmental law 13 So far, most of the legal analysis on effectiveness of environmental law has focused on the formal legal effectiveness of the norms and tends to underestimate the role of the other two meanings of the term. In my opinion, the key meaning of effectiveness should be the third one, the capacity of a certain norm to contribute to the achievement of the ultimate goal of a given norm (Montini 2017). As explained elsewhere, from the point of view of problem-solving effectiveness, environmental law in the several decades of its evolution has been characterized by a double failure (Montini 2017). This is related to the two (often parallel) tracks that have shaped the evolution of environmental law, giving rise to similar results, despite their different starting points. The first track, which corresponds to an environmental regulatory trend, has shaped the first phase of evolution of environmental law in most jurisdictions. It is based on a command-and-control approach and led to the adoption of a broad corpus of environmental legislation aimed mainly at managing the environmental emergencies caused by the negative externalities of economic growth paths promoted by the dominant neoclassical economic model. The huge quantity of environmental legislation adopted under the regulatory trend has been sometimes quite successful, but at the same time has often shown some structural deficiencies, related in particular to the progressive bureaucratization of environmental policies and procedures as well as to the inability to achieve a real and effective level of environmental protection. In most jurisdictions a new environmental deregulatory trend (Bosselmann and Richardson 1999; Montini 2017) gradually emerged, starting from the 1980s. It has been characterized by the use of various tools, such as voluntary measures, market-based approaches (including most notably tradable permits), and incentives and taxes, as alternatives to the traditional command-and-control instruments (Rehbinder 1999). The deregulatory trend has attempted to address the main structural deficiencies of the environmental regulatory trend through the adoption of a softer approach to regulation, characterized by the tendency toward the simplification and streamlining of existing environmental legislation. Deregulation in the environmental field has been largely promoted in the name of reducing burdens on business and citizens, on the assumption that a stringent environmental regulation may put them at a competitive disadvantage compared to actors operating in less regulated legal regimes, whereas the right incentives would lead to innovations that protect the environment without hurting business. However, the risk of such a deregulatory approach is that if priority is given to economic and competitiveness considerations over environmental requirements, it may be very difficult to maintain a high degree of environmental protection, resulting in a widespread reduction in the quality of environmental media and ecosystems in the long term. In fact, despite its positive intentions, the deregulatory trend has not reversed the tendency to speed the progressive deterioration of the ecological foundations of life and has not halted the incumbent ecological crisis. An example of the failure of environmental regulation and deregulation is the climate change legislation passed at the European Union level. In this example, a regulatory approach has been adopted with regard to the progressive C02 reductions imposed by the EU legislation upon the member States, while a deregulatory

14

Massimiliano Montini

approach, largely based on the use of market-based instruments, has been chosen with respect to industrial installations, by means of the EU Emission Trading Scheme (EU ETS). In both cases, the application of the rules has been characterized by a high level of compliance, which nonetheless has led neither to a sufficient level of emission reductions nor to a high degree of eco-innovation toward a carbon-free society (Borghesi et al. 2016). This example clearly shows the double failure aspect of the problem-solving effectiveness of environmental law, by which both the traditional regulatory trend and the subsequent deregulatory trend have often failed to achieve the ultimate ecological objectives that should be pursued by environmental protection legislation. Such objectives should consist in ensuring the protection of the health and integrity of ecosystems, rather than simply addressing and limiting the negative externalities caused on the environmental media by the application of the dominant neoclassical economic model (Garver 2013, 2019; Montini 2017).

How to address the ecological crisis: promoting the transformation of environmental law into ecological law A new attitude is needed to tackle the global ecological crisis, which should include as a core element the transformation of environmental law into ecological law (ELGA 2016). The transformation should be based on a new main objective, a new reference approach and a new key paradigm. First, the new reference objective of protection in an ecological law perspective should be the health and integrity of ecosystems. It should create a discontinuity with the traditional approach that has characterized environmental law up to now, of focusing on managing environmental externalities and accepting environmental pollution and natural resources depletion up to a given extent. This has been done without questioning the continued validity of the dominant neoclassical economic model, despite the growing evidence of excessive pollution and overexploitation of natural resources. As a consequence, environmental law has not been able to address the progressive rise of the ecological crisis caused by human activities under this model. Therefore, in order to tackle the ecological crisis, the transformation of environmental law into ecological law should embrace an ecological law paradigm. This should promote the setting up of minimum standards of ecological protection enshrined in the law with the ultimate aim of guaranteeing the protection of the health and integrity of the ecosystems affected by certain activities or behaviors. As a consequence, human activities should be pursued freely in accordance with the applicable (ecologically based) law, provided that in case of lack of scientific certainty, a precautionary approach is chosen so as to guarantee that ecosystems are not imperiled (Garver 2013, 2019; Kim and Bosselmann 2013; Burdon 2015). Second, the anthropocentric approach that has largely shaped the whole legal system in most jurisdictions and has characterized environmental law so far should be overcome. The traditional approach is well exemplified by Principle 1 of the 1992 Rio Declaration, which affirms that “Human beings are at the centre of

The transformation of environmental law 15 concerns for sustainable development” (Francioni 2015). This traditional approach should be substituted by a new holistic and comprehensive approach that places humans within the context of the ecosystems where they live. Humans should abandon the belief that their interests always come first and should prevail with respect to those of other living and non-living entities. Starting from the premise that they constitute an integral part of ecosystems, humans should embrace a new approach that primarily protects the ecosystems, which represent the basis for the flourishing of all forms of life. The new approach aims at protecting human interests within the framework of a broader comprehensive protection of all living (and non-living) entities on the planet. In concrete terms, this proposed approach is not indifferent to human survival and flourishing but is based on the search of a dynamic equilibrium between the various interests at stake in the context of the functioning of each single ecosystem. The approach advocated here is therefore a holistic and comprehensive one that should overcome the traditional distinction between anthropocentric vs. ecocentric approaches. In fact, it may be referred to as a “blended anthropocentric/ecocentric approach” or a “human-inclusive ecocentric approach” (Garver 2013, 2019; Merchant 2003). Third, there should be a marked shift in the reference paradigm. The neoclassical economic paradigm underpinning environmental law has been deeply influenced by the culture of human domination over nature that has shaped the human economy for several centuries. The culture of domination finds its roots in the Western classical culture and in a traditional Christian reading of the Bible and has been supported and reinforced by the Cartesian view that has shaped our modern society since the sixteenth century (Capra and Luisi 2014; Capra and Mattei 2015). That culture does not resemble the more balanced approach of many traditional (Indigenous) cultures, sometimes called buen vivir, which promote a good quality of life within the limits and constraints of nature (Kothari et al. 2015). The pursuit of buen vivir and similar approaches should be encouraged also in non-Indigenous cultures. Moreover, the objective of promoting human socioeconomic development in harmony with nature, consistent with the aims set up by the United Nations General Assembly Resolution 70/208 on “Harmony with Nature” (UN General Assembly 2015), should become the reference paradigm for the development of a new ecological approach to law and governance. By promoting harmony with nature, humans should aim for socio-economic development that respects and protects all forms of life on the planet (Jørgensen et al. 2015; Montini 2017). The main keyword for the new approach of humans toward nature should be “respect” for life. Humans should aim at a harmonious coexistence with all other living beings. This would be a right approach toward a limitation of environmental pollution and a sound and sustainable use of all resources or, in other words, of a “right relationship” between humans and nature (Brown and Garver 2009). The legal and institutional sources for such a new approach can be traced back, at the international level, to the call for the respect for nature and any form of life as well as for the integrity of ecosystems advocated by the 1982 World Charter for Nature, in the call to respect the “Earth and life in all its diversity” promoted by

16

Massimiliano Montini

the 2000 Earth Charter as well as in the UN call for “Harmony with Nature” mentioned earlier. At the national level, notable examples are the recognition of the rights of nature (or Mother Earth) in the 2008 Constitution of Ecuador and in the 2010 Bolivian “Law of the Rights of Mother Earth” (Montini 2017; Boyd 2018).

Envisioning the transformation of environmental law into ecological law In order to achieve the transformation from environmental law into ecological law, other specific conditions must be fulfilled. It is not only a question of embracing a new main objective (prioritization of ecosystem protection), reference approach (blended anthropocentric/ecocentric approach) and reference paradigm (respect for Nature), as described previously. Moreover, it is not only a question of making changes in the existing legislation so as to show the adoption of an ecological approach, and of fine-tuning the interpretation and application of the existing corpus of environmental law. What is needed instead is a true revolution in thinking, leading to a reimagination of the place of humans within ecosystems, within a holistic and comprehensive perspective. This also implies a “new partnership ethic” between “human and non-human communities . . . in their mutual living interdependence” (Merchant 2003, 223). In my view, to make more evident this sharp move away from the traditional environmental law approach, new terminology is needed as well to better signal the revolutionary path pursued. An essential terminological change is that the new legal approach should be referred to as “ecological law” rather than environmental law. As I have argued elsewhere: “Such a shift in terminology does not merely represent a superficial modification, since it implies a marked change of perspective in the object of protection” (Montini 2017, 283). In fact, the term “environment” is normally understood as the complex of living and non-living entities surrounding humans, which is somehow “other” with respect to them (Montini 2017). This configuration of the environment as separated and detached from human beings may explain the “alterity” and the distance that some people perceive with respect to the environment and its protection. In opposition to such a vision, the advent of ecological law should be accompanied by a marked shift, whereby the focus of protection is the ecosystems to which humans are an integral constitutive part, alongside all other living and non-living entities. For this reason, in my opinion, the term “ecological law” would be more appropriate than the term “environmental law” to signal the shift toward a new approach to the protection of the ecological equilibrium of ecosystems (Garver 2013, 2019; Montini 2017; Sbert 2020). An alternative way to name such a shift toward a new regulatory regime aimed at the protection of ecosystems could be the expression “ecological approach to environmental law” (Bosselmann and Taylor 2017; Montini and Ito 2019), which would have the merit of being less “revolutionary” than the term “ecological law.” This expression may be more understandable to the general public, but in my opinion it entails the risk of not being able to convey the magnitude of the change

The transformation of environmental law 17 required in the legal approach toward the protection of ecosystems in the Anthropocene (Kim and Bosselmann 2013; Aragão 2016; Kotzé 2017; Viñuales 2018). The transformation from environmental law into ecological law ought to start with the reassessment of the existing corpus of environmental law. In fact, all law, not just environmental law, should be thoroughly analyzed and revised with a “teleological” perspective, consisting in the prioritization of the protection of the health and integrity of ecosystems. This will be done with a new spirit and attitude, leading to new methods of interpretation of the law, rather than being merely a question of changing (wherever necessary) the letter of the law. It will be a question of “spirit vs. letter,” whereby the new spirit that should steer the interpretation of the law will be more important than the actual letter of the law. Therefore, the transformation might start even in the absence of major changes in the legislative texts, as argued in the literature with regard to the possibility of an ecologically literate reading of human rights provisions (Collins 2009). A fundamental question regards the main principles, objectives and tools that should be relied upon in order to promote the advocated transformation from environmental law to ecological law. For instance, a reassessment of the concept of sustainable development is necessary (Montini and Volpe 2016, 2017). The usual understanding of the concept as composed of three partially overlapping circles representing the environment, society and the economy, with a (tiny) common core area should be substituted by a pyramidal approach, whereby the protection of the health and integrity of ecosystems represents the necessary and inescapable basis for pursuing socio-economic patterns of (sustainable) development (Bosselmann 2016). The recognition of the ecological core of sustainable development, which is based both on historical as well as on logical grounds, should make ecosystems preservation a priority and a prerequisite for the achievement of sustainable paths of human development, whereby human beings are considered an integral part of the ecosystems in which they live (Berry 1999; Garver 2013; Bosselmann 2016; Montini and Volpe 2016, 2017). The recognition of the ecological core of sustainable development would have the positive consequence of boosting a more incisive application of the related principle of integration—which calls for an integration of environmental considerations in development planning and in the pursuit of all economic activities (Montini 2018). The principle of integration was initially affirmed in international law in Principle 13 of the 1972 Stockholm Declaration and then restated in Principle 4 of the Rio Declaration. In European Union law, article 11 of the Treaty on the Functioning of the European Union (TFEU) explicitly refers to the principle of integration as an operational instrument to promote the achievement of sustainable development. Along this line of reasoning, the principle of integration, in the context of ecological law, may constitute a powerful tool to promote the incorporation of ecological considerations in the planning and implementation of socio-economic patterns of development (Montini 2018). The transformation should signal a two-fold change in objectives: (1) from the human dominance over nature to the human responsibility toward nature; (2) from the right of exploitation of natural resources to the duty of humanity to

18

Massimiliano Montini

respect and protect nature (in particular all living entities). In brief, the age of ecological law should be primarily an age of responsibilities of human beings toward nature, which could find a way of expression in the application of a general duty to respect and protect nature in all its forms. Humans should become trustees of nature for a mutual benefit and an enduring common flourishing of humans with all other living entities, within their common ecosystems (Bosselmann 2015). Finally, the transformation should rely on a set of improved and revised tools aimed at making ecological law an instrument for the protection of health and integrity of ecosystems. In this context, a paramount role could be played by the environmental impact assessment (EIA) procedure. The EIA procedure is one of the most interesting tools in environmental law. EIA is used in order to evaluate the likely effects on the environmental media of a planned project before it is implemented. The prior assessment is meant to gather information on the possible significant risks associated with a certain project and provide prescriptions to the planners in order to minimize those risks. Principle 17 of the Rio Declaration states: “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.” In European Union law, under Directive 2011/92/EU (as amended by Directive 2014/52/EU), the reference to the evaluation of the possible significant adverse risks related to a project is also underlined, as the EIA applies both to public and private projects likely to have “significant effects on the environment by virtue of their nature, size or location.” In European Union law, the scope of the EIA is defined by Directive 2011/92/ EU as covering the direct and indirect effects of a project on the following factors: “(a) population and human health; (b) biodiversity; (c) land, soil, water, air and climate and landscape; (d) material assets, cultural heritage and the landscape; (e) the interaction between the factors referred to in points (a) to (d).” As one can see, in such a context, the focus of the assessment is both on human as well as environmental interests. However, despite the weak mention of the “interactions” between the different factors considered by the norm, there is no specific reference to “ecosystems” as comprehensive places where humans live together with other living entities. The perception, analysis and management of human and environmental risks is still kept somewhat separate. Moreover, there is a certain tendency to consider the impacts on environmental media from an anthropocentric point of view, which gives priority to the instrumental value of environmental media and natural resources, rather than recognize and protect their own intrinsic value. With a view to promoting the advocated transformation toward an ecological law approach, this instrumental value approach should be replaced by a totally new ecological vision in order to make the EIA a powerful instrument of change. To promote the advocated transformation, the EIA should be revised and improved by prioritizing a minimum standard of ecosystems protection over all other possibly competing interests and needs. The revision of EIA should

The transformation of environmental law 19 overcome its use merely as an instrument for a pre-decisional analysis of the foreseeable impacts of a project on the environmental media. The revised assessment procedure should instead incorporate monitoring and adaptation tools to be relied upon after a project already has been approved and implemented. Moreover, the revised EIA should strive toward a sustainability rationale and should become a true “sustainability assessment” (Gibson 2006). In addition, the EIA could be better integrated with the complementary strategic environmental assessment (SEA) for plans and programs in order to give rise to an integrated holistic assessment instrument, which could include procedural as well as substantial elements and could be named “holistic impact assessment” (HIA) (Montini 2013).

Conclusion The present contribution started from the acknowledgment that we are currently facing a broad and comprehensive global ecological crisis. In the Anthropocene, humanity is called to recognize its responsibility to act, leaving behind old paradigms and models, and moving toward a new legal approach to human development in harmony with nature. Since law plays a pivotal role in addressing the global ecological crisis, the question of the legal effectiveness of environmental law becomes crucial and should be approached with a particular focus on problem-solving effectiveness, dealing with the capacity of a given norm to achieve the ultimate environmental objective pursued. In order to overcome the global ecological crisis, the transformation of environmental law into ecological law has been proposed. This should be based on a new main objective, a new reference approach and a new key paradigm. The new main objective should consist in ecological integrity as a prerequisite for nature protection; the new reference approach should overcome the traditional dichotomy between an anthropocentric and an ecocentric approach and consist in a humaninclusive ecocentric approach; the new key paradigm should promote a shift from a culture of domination of humans over nature to a culture of respect of all forms of life, with the ultimate aim to achieve harmony with nature. The transformation from environmental law into ecological law requires a reassessment of the existing corpus of environmental law, and indeed of all of contemporary law, relying upon a revised set of principles, objectives and tools. It should encompass an improved understanding of the principle of sustainable development; it should focus on a two-fold change based on the recognition of the human responsibility toward nature and the corresponding duty to respect and protect all forms of life; and it should revise existing tools, such as the EIA procedure, to give priority to ecosystems protection over other competing interests and needs. The advocated transformation to ecological law will not be easy. However, the ecological crisis is a very serious challenge and will not be solved with the same mindset that has shaped our society so far. If humanity recognizes its responsibilities, a future in harmony with nature is at hand.

20

Massimiliano Montini

References Aragão, A. 2016. “Legal Tools to Operationalize Anthropocene Environmental Law.” In The Safe Operating Space Treaty: A New Approach to Managing Our Use of the Earth System, edited by P. Magalhães, W. Steffen, K. Bosselmann, A. Aragão and V. SoromenhoMarques, 83–103. Newcastle upon Tyne, UK: Cambridge Scholars Publishing. Berry, T. 1999. The Great Work: Our Way Into the Future. New York: Three Rivers Press. Bodansky, D. 2010. The Art and Craft of International Environmental Law. Cambridge, MA: Harvard University Press. Borghesi, S., M. Montini and A. Barreca. 2016. The European Emission Trading System and Its Followers: Comparative Analysis and Linking Perspectives. Switzerland: Springer. Bosselmann, K. 2015. Earth Governance: Trusteeship of the Global Commons. Cheltenham: Edward Elgar Publishing. Bosselmann, K. 2016. The Principle of Sustainability: Transforming Law and Governance, 2nd ed. Abingdon: Routledge. Bosselmann, K. and B.J. Richardson, 1999. “Introduction: New Challenges for Environmental Law and Policy.” In Environmental Justice and Market Mechanisms, edited by K. Bosselmann and B.J. Richardson, 3–18. The Hague: Kluwer law International. Bosselmann, K. and P. Taylor, eds. 2017. Ecological Approaches to Environmental Law. Cheltenham: Edward Elgar Publishing. Boyd, D.R. 2018. The Rights of Nature: A Legal Revolution that Could Save the World. Montreal: ECW Press. Brown, P.G. and G. Garver. 2009. Right Relationship: Building a Whole Earth Economy. San Francisco: Berrett-Koehler. Burdon, P.D. 2015. Earth Jurisprudence: Private Property and the Environment. New York: Routledge. Capra, Fritjof and Pier Luigi Luisi. 2014. The Systems View of Life: A Unifying Vision. Cambridge: Cambridge University Press. Capra, Fritjof and U. Mattei. 2015. The Ecology of Law: Toward a Legal System in Tune with Nature and Community. Oakland, CA: Berrett-Koehler Publishers. Collins, L.M. 2009. “An Ecologically Literate Reading of the Canadian Charter of Rights and Freedoms.” Windsor Review of Legal and Social Issues 26: 7–48. Ecological Law and Governance Association (ELGA). 2016. “Oslo Manifesto for Ecological Law and Governance. From Environmental Law to Ecological Law: A Call for Re-Framing Law and Governance.” Accessed February 1, 2020. www.elga.world/ oslo-manifesto. Francioni, F. 2015. “Principle 1.” In The Rio Declaration on Environment and Development: A Commentary, edited by J.E. Viñuales, 93–106. Oxford: Oxford University Press. Garver, G. 2013. “The Rule of Ecological Law: The Legal Complement to Degrowth Economics.” Sustainability 5, no. 1: 316–337. Garver, G. 2019. “A Systems-based Tool for Transitioning to Law for a Mutually Enhancing Human-Earth Relationship.” Ecological Economics 157: 165–174. Gibson, R.B. 2006. “Sustainability Assessment: Basic Components of a Practical Approach.” Impact Assessment and Project Appraisal 24: 170–182. IPCC. 2018. “Special Report Global Warming of 1.5°C.” Accessed February 1, 2020. www.ipcc.ch/sr15. Jørgensen, S.V., B.D. Fath, S.N. Nielsen, F.M. Pulselli, D.A. Fiscus and S. Bastianoni, eds. 2015. Flourishing Within Limits to Growth: Following Nature’s Way. Abingdon: Earthscan.

The transformation of environmental law 21 Kim, R.E. and K. Bosselmann. 2013. “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements.” Transnational Environmental Law 2: 285–309. Kolbert, E. 2014. The Sixth Extinction: An Unnatural History. New York: Henry Holt and Company. Kothari, A., F. Demaria and A. Acosta. 2015. “Buen Vivir, Degrowth and Ecological Swaraj: Alternatives to Sustainable Development and the Green Economy.” Development 57: 362–375. Kotzé, L., ed. 2017. Environmental Law and Governance for the Anthropocene. Oxford: Hart. Magalhães, P., W. Steffen, K. Bosselmann, A. Aragão and V. Soromenho-Marques, eds. 2016. The Safe Operating Space Treaty: A New Approach to Managing Our Use of the Earth System. Newcastle upon Tyne, UK: Cambridge Scholars Publishing. Merchant, C. 2003. Reinventing Eden: The Fate of Nature in Western Culture. New York: Routledge. Montini, M. 2013. “Towards a New Instrument for Promoting Sustainability beyond the EIA and the SEA: The Holistic Impact Assessment (HIA).” In Rule of Law for Nature: New Dimensions and Ideas in Environmental Law, edited by C. Voigt, 243–258. Cambridge: Cambridge University Press. Montini, M. 2014. “Revising International Environmental Law through the Paradigm of Ecological Sustainability.” In International Law for Common Goods: Normative Perspectives in Human Rights, Culture and Nature, edited by F. Lenzerini and A.F. Vrdoljak, 271–287. Oxford: Hart. Montini, M. 2017. “The Double Failure of Environmental Regulation and Deregulation and the Need for Ecological Law.” Italian Yearbook of International Law 26: 265–285. Montini, M. 2018. “The Principle of Integration.” In Principles of Environmental Law, edited by Ludwig Kramer and Emanuela Orlando, 139–149. Cheltenham: Edward Elgar Publishing. Montini, M. and M. Ito. 2019. “Nature’s Rights and Earth Jurisprudence. A New EcologicallyBased Paradigm for Environmental Law.” In The Right to Nature: Social Movements, Environmental Justice and Neoliberal Natures, edited by E. Apostolopoulou and J.A. Cortes-Vazquez, 221–233. Abingdon: Routledge. Montini, M. and F. Volpe. 2016. “Sustainable Development at a Turning Point.” Federalismi 21: 2–19. Accessed February 1, 2020. www.federalismi.it/nv14/articolodocumento.cfm?Artid=32698. Montini, M. and F. Volpe. 2017. “Regulation for Sustainability: Promoting an Ecology Routledge-based Approach.” Federalismi 3: 2–16. Accessed February 1, 2020. www. federalismi.it/nv14/articolo-documento.cfm?Artid=33518. Montini, M. and F. Volpe. 2019. “The Need for an ‘Integral Ecology’ in Connection with the UN Sustainable Development Goals.” In Care for the World: Laudato Si’ and Catholic Social Thought in an Era of Climate Crisis, edited by F. Pasquale, 56–67. Cambridge: Cambridge University Press. Pope Francis. 2015. “Encyclical Letter Laudato Si’ of the Holy Father Francis on Care for Our Common Home.” Accessed February 1, 2020. http://w2.vatican.va/content/dam/francesco/ pdf/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si_en.pdf. Raworth, K. 2017. Doughnut Economics: Seven Ways to Think Like a 21st-Century Economist. White River Junction, VT: Chelsea Green Publishing. Rehbinder, E. 1999. “States Between Economic Deregulation and Environmental Responsibility.” In Environmental Justice and Market Mechanisms, edited by K.B.J. Richardson, 93–109. The Hague: Kluwer Law International.

22

Massimiliano Montini

Rockström, J., J.D. Sachs, M.C. Öhman and G. Schmidt-Traub. 2013. “Sustainable Development and Planetary Boundaries.” Background research paper the UN High-Level Panel of Eminent Persons on the Post-2015 Development Agenda. Accessed February 1, 2020. www.post2020hlp.org/wp-content/uploads/docs/Rockstroem-Sachs-OehmanSchmidt-Traub_Sustainable-Development-and-Planetary-Boundaries.pdf. Rockström, J., W. Steffen, K. Noone, Å. Persson, F.S. Chapin, III, E. Lambin, T.M. Lenton, M. Scheffer, C. Folke, H. Schellnhuber, B. Nykvist, C.A. De Wit, T. Hughes, S. van der Leeuw, H. Rodhe, S. Sörlin, P.K. Snyder, R. Costanza, U. Svedin, M. Falkenmark, L. Karlberg, R.W. Corell, V.J. Fabry, J. Hansen, B. Walker, D. Liverman, K. Richardson, P. Crutzen and J. Foley. 2009a. “Planetary Boundaries: Exploring the Safe Operating Space for Humanity.” Ecology and Society 14, no. 2: 32. Accessed February 1, 2020. www.ecologyandsociety.org/vol14/iss2/art32. Rockström, J., W. Steffen, K. Noone, Å. Persson, F.S. III Chapin, E. Lambin, T.M. Lenton, M. Scheffer, C. Folke, H.J. Schellnhuber, B. Nykvist, C.A. de Wit, T. Hughes, S. van der Leeuw, H. Rodhe, S. Sörlin, P.K. Snyder, R. Costanza, U. Svedin, M. Falkenmark, L. Karlberg, R.W. Corell, V.J. Fabry, J. Hansen, B. Walker, D. Liverman, K. Richardson, P. Crutzen and J. Foley, 2009b. “A Safe Operating Space for Humanity.” Nature 461: 472–475. Sbert, C. 2020. The Lens of Ecological Law: A Look at Mining. Cheltenham, UK: Edward Elgar Publishing. Steffen, W., K. Richardson, J. Rockström, S.E. Cornell, I. Fetzer, E.M. Bennett, R. Biggs, S.R. Carpenter, W. de Vries, C.A. de Wit, C. Folke, D. Gerten, J. Heinke, G.M. Mace, L.M. Persson, V. Ramanathan, B. Reyers and S. Sörlin. 2015. “Planetary Boundaries: Guiding Human Development on a Changing Planet.” Science 347: 6223. UN Environment Programme. 2019. “Global Environment Outlook (GEO) 6.” Accessed February 1, 2020. www.unenvironment.org/resources/global-environment-outlook-6. UN General Assembly. 2015. “Resolution adopted by the General Assembly on December 22, 2015. 70/208. Harmony with Nature.” Accessed February 1, 2020. http://undocs.org/ en/A/RES/70/208. Viñuales, J.E. 2018. The Organisation of the Anthropocene: In Our Hands? Leiden: Brill. Wackernagel, M., L. Hanscom and D. Lin. 2017. “Making the Sustainability Development Goals Consistent with Sustainability.” Frontiers in Energy Research. www.doi. org/10.3389/fenrg.2017.00018. Westerlund, S. 2008. “Theory for Sustainable Development.” In Sustainable Development in International and National Law, edited by Hans Christian Bugge and Christina Voigt, 47–66. Groningen: Europa Law Publishing. Young, O.R. 1994. International Governance: Protecting the Environment in a Stateless Society, Ithaca, NY: Cornell University Press.

Part 2

Problems with contemporary law Two illustrative examples

2

The targeting of environmentalists with state-corporate intelligence networks Peter D. Burdon1

This chapter focuses on the way governments in Canada and Australia are working with intelligence services and the private sector to spy on and infiltrate environmental organizations that are targeting “critical infrastructure” such as coal mines and gas developments. Australia and Canada are natural subjects to examine together. Both countries emerged from the British Commonwealth and share histories of settler-colonial violence; both are federations and share similar legal, tax and property structures; and both countries have promoted the importance of resource extraction for economic health as jobs in manufacturing have moved offshore (Brunet-Jailly and Martin 2010, 3–34). With respect to security, Australia and Canada are both members of the Five Eyes intelligence alliance of English-speaking intelligence services. Domestically, the vast bulk of intelligence is gathered by two agencies. In Australia, this work is conducted by the Australian Federal Police (AFP) and the Australian Security Intelligence Organization (ASIO). The comparable organizations in Canada are the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS). There is nothing new about intelligence and police agencies spying and infiltrating political organizations. Both ASIO and the CSIS were founded during the Cold War and in response to the belief that the Soviet Union lay behind the wave of liberation movements that emerged after the Second World War. Recently published histories and investigations illustrate that intelligence agencies have often treated civil society and popular movements with suspicion and have a very narrow perspective on what constitutes legitimate public participation in a democracy (Horner 2016; Crosby and Monaghan 2018). Moreover, intelligence agencies have a very long record of interpreting their function to include the protection of natural resources for development by the private sector (Horner 2016, 89–119). What is new and disturbing in Australia and Canada is the way environmentalists are being characterized as “terrorists,” and the security relationships that intelligence services are entering into with private security firms (Potter 2012; Lubbers 2012). These practices represent a material impediment to the realization of ecological law and a degradation of the public sphere. Moreover, I contend that unless the dynamics of these policing practices are understood and countered, it will be very difficult for advocates to make any substantial ground in realizing ecological law.

26

Peter D. Burdon

This chapter proceeds in three parts. To begin I unpack what neoliberal rationality means. While other writers use neoliberalism to think about economic policy or governance systems, I use it to describe a dominant mode of reason that reduces human beings to economic actors. From inside this logic it is impossible to see protest as an expression of democracy or as a mechanism for achieving ecological law. Instead, it is viewed as an impediment to markets and the free flow of capital. To say that this is a dominant logic also means that it is so pervasive that it has the appearance of being natural. Using neoliberal rationality as my guiding theory, I look at examples in Canada and Australia of how protesters have been treated as terrorists and policing practices that have resulted in networks of cooperation between the police, security agencies and the private sector. My examples look specifically at resources that have been designated as “critical infrastructure,” such as coal, oil and natural gas. Finally, I look at ways for thinking outside of neoliberal rationality. This discussion focuses on the concept of “public things” and considers how people working to defend public land and goods can help us defend ecological values. Such work, I suggest, is critical if we are to materially realize the concepts of ecological law described in this book.

Neoliberal rationality: constructing protesters as terrorists Legal and policy developments in Canada and Australia illustrate how the governing ideas of neoliberalism have created cultural logics that enable governments and corporations to characterize environmental activism as terrorism. Labeling environmental defenders in this way justifies their surveillance and suppression (Kinsman and Gentile 2010). Sometimes this characterization is defended as a means for protecting workers and the market from the interference of protesters (Morton 2018). In other cases, it has been justified as protecting national interests or critical infrastructure (McCarthy 2017). Whatever the argument, the rationale reflects a neoliberal rationality where all domains of life are “economized” (Brown 2015, 37) and non-wealth generating spheres such as the commons or national parks are construed in market terms. This interpretation of neoliberalism understands it as one among a range of forms of reason that govern human societies through norms that impact our behavior or “conduct our conduct” (Brown 2015, 38). If we theorize neoliberalism only as a set of economic policies or as an ideology, we miss the ways in which it has brought about new kinds of subjects and social relations. Neoliberal rationality informs our identity and influences our actions and values. It determines what we can expect from politics and our expectations of democracy. According to Brown (2019, 11), neoliberalism demonizes “the social and the democratic versions of the political life.” When neoliberalism asserts itself as natural—a “truth regime” (Foucault 2000, 131)—alternative concepts and values are unthinkable or invisible. Goals relating to environmental protection or the rights of First Nations can only be heard and understood if they are framed in terms of economic growth or national competitiveness. Thus, for example, Barack Obama championed clean energy because it

The targeting of environmentalists 27 would keep the American economy competitive: “as long as countries like China keep going all-in on clean energy, so must we” (cited in Brown 2015, 25). If environmental goals cannot be framed in this way, they cannot be understood. And in this light, protest has been reconceptualized as an impediment to desirable market forces. Under neoliberalism, protest cannot be understood as political engagement, the exercise of civic rights or a contribution to the common good. These things have no market value, and under neoliberal rationality, this means they have no worth. As a result, the right to protest has been increasingly emptied of meaning, and the idea of citizens as actively engaged in the political process has been eroded. At the same time, neoliberalism has rendered the “right” of business to unfettered market activity in the pursuit of profit almost self-evident. Put another way, businesses seeking to maximize profit are clearly economic actors, and under neoliberal rationality they are therefore rights bearers. That business has a right to protect economic activity from protesters becomes obvious within this mode of thinking. I turn now to see how this rationality has played out in Canada and Australia. Canada There is a growing literature in Canada that seeks to unpack the relationship between security services, police forces and the private sector in monitoring and infiltrating environmental organizations and collecting intelligence on individuals. Monaghan and Walby (2017, 51–52) have detailed how critical infrastructure protection (CIP) has been transformed into a discourse that constructs the environmental movement as a threat to national security and environmentalists as eco-terrorists. The term CIP is flexible and can be applied to “any person, place, or thing that a state agency or corporation designates as significant” (Monaghan and Walby 2017, 53; Lipcshutz 2009, 204). Like the situation in Australia, this construction of protesters derives from “Cold War” thinking on sabotage which targeted communist agents (Monaghan and Walby 2017, 51 and 54–55; Kinsman et al. 2000). However, Monaghan and Walby argue that CIP has been transformed into a “heterogeneous field of menace” that encompasses “traditional state-based espionage and sabotage”; “nonstate threats associated with terrorism”; and “disruptions presented by social movements, computer viruses, traffic jams, and migratory birds” (Monaghan and Walby 2017, 51–52). Monaghan and Walby also describe a “state-corporate symbiosis” or “petro-security apparatus” whereby security services and major energy corporations work as “security peers” to share information and disrupt political protest (Monaghan and Walby 2017, 52). This can take many forms, including ASIS seminars on CIP (Monaghan and Walby 2017, 54) and direct liaison between police and companies to disrupt legitimate public protests. In the latter case, Monaghan and Walby argue that national security agencies organize CIP surveillance by “coordinating hubs that draw specialists from multiple agencies who collaborate with provincial and local police as well as industry representatives” (Monaghan and Walby 2017, 52).

28

Peter D. Burdon

Following Brown, I suggest that the “state-corporate symbiosis” can be understood as a form of neoliberal governance that rationalizes the construction of protesters as terrorists and justifies their exclusion and surveillance. While the term governance has been described as “a kind of catch-all to refer to any strategy, tactic, process, procedure or program for controlling, regulating, shaping, mastering or exercising authority over others” (Rose 1999, 15) I am using it here to emphasize how intelligence agencies have sought to systematize “best practices” (Goldsmith and Sheptycki 2007) and the role of policy and regimes of control in the management of activist groups (Monaghan 2017, 4). While the environment movement has often provoked strong resistance, it was not until the 1990s that activists were routinely characterized as terrorists and extremists (Monaghan and Walby 2017, 55). The first case was a RCMP investigation into Wiebo Ludwig called “Operation Kabriole.” During the operation, the RCMP worked directly with the Alberta Energy Company (AEC) and planned a series of actions to “build a media panic around eco-terrorism” (Monaghan and Walby 2017, 56). For example, RCMP planned to blow up an AEC truck (CBC News 1999) and bomb an abandoned shed (CBC News 2000). Ludwig was eventually convicted of multiple counts of sabotage, and his case remains a reference point for security agencies seeking to justify treating environmental activists as “threats to national security” (Leahy 2013) or including them in “conjunction with threats from Al-Qaeda or others with the explicit aim of harming civilian populations” (Monaghan and Walby 2017, 57). More recent examples can be noted in the documents Monaghan and Walby obtained. In one instance, a threat assessment produced by the RCMP Critical Infrastructure Intelligence Team on anti-fracking protesters in Quebec and New Brunswick starts by summarizing activities from Al-Qaeda before concluding that given “the increasing number of criminal incidents and the level of violence targeting the Canadian shale gas industry, there is also the very real possibility that Canadian anti-fracking activists may link up with their US counterparts to compare and develop protest/direct action techniques” (Monaghan and Walby 2017, 58; Howe 2015). This is an example of a “threat construction” that conflates Al-Qaeda with environmental activism and introduces unsupported assertions of violence to mobilize the “petro-security apparatus” and designate “eco-protests” as deserving routine surveillance from national security agencies (Monaghan and Walby 2017, 58). In their attempt to understand the neoliberal governance regime in Canada, Monaghan and Walby focused on protests surrounding the Enbridge Gateway pipeline which would transport oil from Alberta to the coast of British Columbia. The authors obtained 1,900 pages of documents and sketched a “policing assemblage” that included the RCMP, CSIS Enbridge, TransCanada and other energy corporations (Monaghan and Walby 2017, 56; Brodeur 2010). These relationships were formalized despite Tim O’Neil, Senior Criminal Intelligence Research Specialist with the RCMP, expressly stating that there is “no intelligence indicating a criminal threat to the [National Energy Board] or its members” and “I could not detect a direct or specific criminal threat” (Millar 2013). However, O’Neil pressed on and warned security partners that the ultimate goal of “anti-oilsands”

The targeting of environmentalists 29 and “anti-Canadian petroleum” critics was the “shut down of the Canadian petroleum industry” (Millar 2013; Monaghan and Walby 2017, 61). Meetings between the security peers began in 2010 after Enbridge submitted its application for approval. An initial working group that consisted of CSIS, various divisions of the RCMP and Enbridge met in August 2010 to “discuss security concerns relating to the pipeline project, with the objective of developing an integrated intelligence production plan” that could be distributed to partners involved in the surveillance of environmental activists (Monaghan and Walby 2017, 59). Those gathered at the meeting made no pretense of neutrality over the project. In the economized language described by Brown, the parties praised the economic benefits and safety of the project. For example, summary notes record the assertion that “the financial benefits of the pipeline to the Canadian (including Alberta and BC) economy are well documented, as are the benefits to the US and possibly Asian energy markets” (Monaghan and Walby 2017, 59). The notes also comment that “there be many spin-off jobs created during the construction of the pipeline, and there will be legacy jobs created to maintain the pipeline” (Monaghan and Walby 2017, 60). Concerns that cannot be economized are displaced, and those opposed to the project are characterized as “anti-social deviants,” “upset First Nations,” “unreasonable environmentalists” and “complainers” (Monaghan and Walby 2017, 60). Following this first meeting, the RCMP committed to “collaborate in the production of associated classified and unclassified intelligence products” (Monaghan and Walby 2017, 60) with the other parties at the meeting. Documents also thank senior members of the RCMP for integrating Enbridge and other private companies into the production circle, and parties are encouraged to connect with “other stakeholders” such as private intelligence firms in the “production of the intelligence products” (Monaghan and Walby 2017, 60). With the network in place, security peers engaged in a “widespread open source surveillance, tracking social media” for any comment that targeted the National Energy Board, Gateway or Enbridge (Monaghan and Walby 2017, 62). This dragnet approach to surveillance produced intelligence products that ranged from the mundane (i.e. information about an all-Native basketball tournament) to personal email correspondence. This suggests simply “speaking in public about opposition to energy development presents grounds for surveillance efforts” (Monaghan and Walby 2017, 62). Following the Enbridge case, security peers formalized governance techniques and started holding a regular Energy and Utility Sector Stakeholder briefing facilitated by CSIS and Natural Resources Canada (Monaghan and Walby 2017, 64). The meetings involve representatives from the RCMP, CSIS, private energy firms and private security personnel. The RCMP notes that these meetings are held to provide intelligence to select energy representatives so they are able to implement the required security precautions to protect their assets [and] provide a forum for the private sector to brief the Canadian intelligence and lawenforcement community on issues we would not normally be privy to. (Monaghan and Walby 2017, 64)

30

Peter D. Burdon

To attend these meetings and view classified material, participants from the private sector are given Level II security clearance (Monaghan and Walby 2017, 64). While those inside the governance mechanisms are given preferential treatment, those outside have their identities muddied, searched and cataloged. The systemization of these practices has enabled security peers to mobilize with greater efficiency in response to subsequent protests (Monaghan and Walby 2017, 64) and have entrenched environmentalists and First Nations as outsiders whose demands can only be interpreted as an intelligence product (Crosby and Monaghan 2018, 37). Australia Since its inception, Australia’s domestic security infrastructure has struggled to differentiate between legitimate threats to national security and political protest. The AFP and ASIO have a long history of targeting communist organizations and aboriginal rights activists, and have gradually expanded their functions and responsibilities to include the protection of natural resources and counterterrorism. Since the attacks on the World Trade Center on September 11, 2001, ASIO has expanded and systematized its governance practices with the AFP state/ territory police forces. Between 2001–2015, the organization’s budget increased from $69 million to $606 million. Staff numbers also increased from 584 in 2001 to 1,795 in 2014 (Lynch et al. 2015, 155). Moreover, between 2002–2014 the federal government engaged in a period of “hyper-legislation” (Roach 2011, 310) passing 64 separate acts related to counterterrorism (Lynch et al. 2015, 1; Hocking and Lewis 2008, 138). As ASIO’s powers have expanded, the priorities and political concerns of the government and security apparatus have also dramatically shifted. The landscape is virtually unrecognizable from the Cold War, and ASIO’s historical concern with subversion has evolved to encompass a myriad of political activity. Research in Canada is far more advanced than in Australia in terms of mapping relationships between police, intelligence services and the private sectors. Most of the available information comes from investigative journalists who have made successful Freedom of Information (FOI) requests or have received leaked documents from protected sources. Nonetheless, neoliberalism is the dominant rationality here as well, and notions such as CIP and the petro-security apparatus are useful for understanding the characterization of activists and terrorists and the repression of activism. To begin, in Australia, critical infrastructure refers specifically to those physical facilities, supply chains, information technologies and communication networks which, if destroyed, degraded or rendered unavailable for an extended period, would significantly impact the social or economic wellbeing of the nation or affect Australia’s ability to conduct national defense and ensure national security. (Critical Infrastructure Centre 2018)

The targeting of environmentalists 31 This broad definition empowers the AFP and ASIO to protect aspects of Australia’s energy infrastructure, including coal plants, coal mines and transport routes. The National Guidelines for Protecting Australian Critical Infrastructure from Terrorism also bring many regular commercial activities related to energy into the definition of critical infrastructure—including shipping coal, mineral exploration and offshore drilling (Australia-New Zealand Counter-Terrorism Committee 2015). Activities that threaten the energy supply or commercial activities related to energy will come to the attention of ASIO and the federal police (ABC FourCorners 2006). While not new (Horner 2016), the intensity of surveillance and monitoring of environmental activists has increased rapidly in the last decade. A useful starting point is 2009, when former Labor federal energy minister Martin Ferguson argued that ASIO had a responsibility to take stronger measures to protect Australian coal infrastructure. While Australia’s anti-coal movement has had a long commitment to nonviolence, Ferguson justified ASIO’s involvement by noting that protests could have “life-threatening” consequences and “major trade and investment implications” (Dorling 2012). This language mirrors the rhetoric of CIP and energy security that is used in Canada. In language tailored to the protection of CI, Ferguson argued: The risk of protest-related disruptions in the energy sector is likely to continue in the near future . . . [and] these disruptions pose a real threat to the reliable delivery of electricity and other essential services. [Disruptions] at critical times can have serious, and at times life-threatening, repercussions across the community. (Dorling 2012) Reporting on these comments, Dorling (2012) noted: “Security officials have suggested privately that environmental activists pose greater threats to energy infrastructure than terrorists.” In response to questions from the media, a spokesperson from the government confirmed that ASIO was monitoring anti-coal activists and providing advice to the Department of Resources, Energy and Tourism. However, the government refused to release a ministerial brief prepared by ASIO in December 2010 on the basis that the document contained sensitive and classified material derived from “an intelligence agency document” (Dorling 2012). Records obtained through FOI confirm that in 2009 Ferguson made inquiries to Attorney General Robert McClelland to see if “the intelligence-gathering services of the Australian Federal Police” could be directed to assist energy companies combat protesters. Ferguson was particularly concerned about protests directed at the recently decommissioned Hazelwood station (Macdonald-Smith 2017), noting that “protests such as this can lead to unlawful activity designed to directly compromise the delivery of essential services to Australians” (Dorling 2012). In response to this request, McClelland wrote: “While I recognise the right to protest, when actions jeopardise energy security and the delivery of essential

32

Peter D. Burdon

services, it is important that measures are taken to prevent and deter unlawful activity” (Dorling 2012). McClelland also confirmed that the AFP “continually monitors the activities of issues-motivated groups and individuals who may target establishments through direct action, or action designed to disrupt or interfere with essential services” (Dorling 2012). Finally, McClelland praised the important service that ASIO provides in “intelligence gathering, analysis and advice in relation to protest activity [that] focuses on actual, or the potential for, violence” (Dorling 2012). “[W]here warranted” the letter concluded, “ASIO advice may take the form of security intelligence reports, notification of protest action or threat assessments” (Dorling 2012). Other documents secured through FOI were heavily redacted to prevent disclosure of the methods used by ASIO and the AFP to prevent, detect and investigate attempts to disrupt CEI (Dorling 2012). Anonymous “security sources” also confirmed to The Age that ASIO has expanded its operations to monitor protest groups and protect CEI. One source stated: Providing advice and intelligence to safeguard [critical energy infrastructure] is clearly within ASIO’s responsibilities. . . . ASIO has a clear role, including protection against sabotage. (Dorling 2012) This comment was effectively confirmed in 2012 by a spokesperson for AttorneyGeneral Nicola Roxon (Hamilton 2014). While noting that the “Australian government recognises and respects people’s right to peaceful protest,” the spokesperson stated that the government would not “tolerate unlawful or violent protest actions” and that ASIO has the responsibility to monitor “activity that is, or has the potential to be, violent for the purposes of achieving a political objective” (Hamilton 2014; Dorling 2012). Speaking on the television program Q and A, Roxon responded thus to an inquiry about ASIO spying on coal protesters: I would expect that the contact if there was any of that behaviour, would be police, both state and federal, rather than ASIO. But there may be people and unfortunately we do see a growing number of links across some sort of groups who are anarchist, others who meld into some religious, sometimes, and intent with committing a terrorist offence that might link in with other protest groups—you do see a little bit of merging. (ABC 2012) Alongside these practices, recent investigations in Australia have raised questions about whether ASIO works with private companies or formed security relationships along the lines described by Monaghan and Walby (2017). The best documented case occurred in 2014 and was reported by Allard (2014a). The spying was carried out against landowners and anti-coal activists who were campaigning to stop Whitehaven Coal and Idemitsu Australia Resources from developing coal mines at Maules Creek and Boggabri, NSW. In response, Idemitsu admitted to contracting

The targeting of environmentalists 33 two private companies to infiltrate and collect information on the groups. At first instance, Idemitsu worked with C5 Management Solutions (C5MS), a security consultancy run by former AFP officer Tyrone Clarke (Allard 2014b). C5MS was tasked with hiring “private intelligence operatives” and required them to “sign non-disclosure agreements.” One organization hired by C5MS was the Centre for Intelligence and Risk Management (CIRM). CIRM was run by Tony Groves, a former Australian military intelligence officer, and his partner Maria Topia, who was also reported to have a background in intelligence (Allard 2014a). Their task was to infiltrate environmental groups with spies who posed as anti-coal activists and to send regular reports to CIRM regarding campaign strategy and tactics (Allard 2014b). Alongside C5MS, Idemitsu also worked with Strongs Security Services (SSS)2 to “provide security services and advice” (Allard 2014b). When confronted about reports, Rod Bridges, the CEO of Idemitsu, argued that anti-coal protesters had been involved in “increasingly aggressive and dangerous” actions and required a high level of security. However, Bridges also stated that he had no personal knowledge that spying was being carried out: “I was pretty shocked by what I saw in the newspaper,” he said. Bridges noted further that he had received legal advice not to make inquiries with SSS or C5MS (Allard 2014b). Whitehaven Coal has a security contract with Verifact. While Verifact has denied carrying out similar operations, a senior member commented that they had seen “dispatches” about the spying (Allard 2014b). Requests for further information under FOI have been denied, but in his reporting Allard argued that the “ultimate client” behind the spying “remains a mystery” and that CIRM was acting for “another party or parties” (Allard 2014a). As Hamilton (2014) has argued, it is unlikely that this is a “one-off event.” Given ASIO’s history in undermining political protest and the relationship that security services are building with private companies in other jurisdictions, this is a reasonable conclusion. But at this stage, further research is required to develop a clear picture about whether and how deeply linked Australia’s private security services are to ASIO and private companies and the extent those groups are sharing information. ASIO, the AFP and NSW police all denied being involved in infiltrating the anti-coal protesters at Maules Creek and Boggabri. They also denied using private companies to infiltrate activists but noted that private firms were used to monitor public material on Internet sites and social media (Allard 2014c). Moreover, it is also clear that the private security business is expanding and drawing personnel from Australia’s intelligence community. As Tom Allard (2014c) reported, the people joining private security firms once “took up lucrative private contracting work in Iraq and Afghanistan.” However, as those wars have wound down and work has become scarce, the “techniques used in the conflict zones are being deployed in Australia.”

In defense of public things So far in this chapter I have argued that neoliberal rationality has given rise to a dominant logic that renders citizens as homo economicus. It also interprets

34

Peter D. Burdon

peaceful dissent in a way that at best degrades protest as an impediment to the market and at worst characterizes protesters as terrorists. Both Canada and Australia have a history of demonizing popular participation in democracy, but those tendencies are exacerbated under neoliberalism through the designation of polluting industries as critical infrastructure and new forms of partnership between the police, security services and private security firms. Navigating the “state-corporate symbiosis” is a new challenge for environmental activists. And if Brown is right—if neoliberalism is “the rationality through which capitalism finally swallows humanity”—then we all have cause for despair (Brown 2015, 44). If we treat neoliberalism as a totalizing discourse, from what source can non-instrumental values inform future law and governance arrangements— for example, ecological law—over energy resources? How might the environment movement communicate the values of robust democratic citizenship when everything is framed in terms of economic growth or national competitiveness? As Bonnie Honig observes, “it is difficult to understand where resistance could come from and how a politics of alternative movements could take hold” (Honig 2017, 19–20). In response to this reading of neoliberalism, Brown herself does not theorize neoliberalism in a totalizing way. For example, Brown notes that subjects are formed in response to a variety of different social and economic circumstances. She also briefly notes that countering the “civilization of despair” is the “work [that] could afford the slightest hope for a just, sustainable and habitable future” (Brown 2015, 222). Honig (2017, 4) develops this line of inquiry, noting that a totalizing reading of neoliberalism does not account for acts of resistance that tend to coalesce around “public things.” Honig does not explicitly define the term, but she argues that public things might become the foundations around which citizens organize and imagine new forms of public participation (2017, 24). To illustrate this argument, Honig (2017, 3) highlights several examples, including struggles to nationalize power in Quebec, and peasant resistance to the industrialization of agriculture by companies such as Monsanto. Another example that can be noted is the campaign to prevent TransCanada from building an oil pipeline over First Nations land in British Columbia. In this example, activists are being targeted under the Anti-terrorism Act 2015 (C-51) which criminalizes conduct that interferes with critical infrastructure (Honig 2017, 22; Nelson 2015). First Nations are refusing this designation and also articulating a different understanding of what is critical. Freda Huson, a member of the Unis’tot’en nation, provides an example: “They say they have developed C-51 for the purpose of protecting Canada’s critical infrastructure projects, and what we’re doing here is we’re protecting our critical infrastructure” which includes “the land itself and the medicine, berries, fish and wildlife hunting it provides” (Honig 2017, 22). From Huson’s perspective, it is TransCanada, not the Unis’tot’en nation that are the terrorists. Moreover, the activism that is being led by First Nations communities is an example of how activism in defense of public land can give people a space to articulate alternative values and imagine a future outside of the relentless economization of neoliberalism.

The targeting of environmentalists 35 A further example of this can be noted in the film Holding Their Ground which contains interviews with Unis’tot’en activists (Honig 2017, 23). The film begins in July 2015 when representatives from Chevron came to the community. The representatives opened by saying: We’re here today to talk to you about doing work on your land and are requesting access onto your territory so that Wet’suwet’en people can work and to see benefits from the project. Will you allow . . . us to access the territory here today? In response Huson replied: We’ve already said no to these projects. And that no pipelines will come on our territory and irregardless if you’ve got other Wet’suwet’en members working for you does not gain you access to our territory. . . . You’re trying to convince us to give up our way of life so that you can reap the benefits for government and investors . . . while you’re throwing crumbs to some of the partners that signed on. (Honig 2017, 23) The representatives from Chevron try again, saying: “We brought you an offering. . . . We’ve left some water and some tobacco.” These words are surely meant to provoke memories of settler-colonial “gift giving” and perhaps even provoke individuals into a strong reaction that would serve to justify appropriating the land (Honig 2017, 23). However, rather than escalate the situation, Huson replied: No thanks. We’ve got clean water right here [pointing to a freshwater stream]. That’s what we drink and that’s [pointing to the “offering” of bottled water] pollution; that’s the plastic that adds to the landfill. So you can take your water because we don’t want it. (Honig 2017, 23) It is possible to read many things into this exchange. Certainly, there is a clash of cultures and values. However, Honig (2017, 23) also notes that the scene illustrates resistance to “neoliberal rationality” and the attempt to protect “vivid and cherished” aspects of culture against the logic of economization. Resistance here is “vivified in the public things of tribal life” and illustrates that for the Unis’tot’en nation the “sovereignty of the tribe and its relationship to public things are constitutively and inextricably intertwined.” In a different context, something similar is playing out with recent actions carried out under the umbrella of Extinction Rebellion, where hundreds of thousands of citizens around the world blockade roads, bridges and other sites of public significance (Taylor and Gayle 2018). Public property is important here and not just because it is a place from which protesters cannot easily be excluded. Those public spaces are sites of democracy and where our sense of collectivity is restored and

36

Peter D. Burdon

renewed. And when people come together in a collective, they cannot be characterized or reduced to individual preference maximizers. They refuse being interpellated as neoliberal subjects and can act outside and against the dominant logic of neoliberalism. Of course, the brief examples I have engaged here have each given rise to unique and sometimes illegal (BBC News 2019) responses from the state. But they also point to the fact that while neoliberalism might be ascendant, it is not totalizing. And if we can think outside of neoliberalism, we can also redefine the demos in a way that has respect for public things and democratic processes.

Conclusion In this chapter I have sought to understand a growing trend in Canada and Australia whereby nonviolent protesters are characterized as terrorists and subjected to increasingly hostile modes of policing and surveillance. In some cases, police and security services are even willing to enter formal information-sharing arrangements with the private sector to safeguard market access to extractive industries. I argued that this can, in part, be explained through the logic of neoliberal rationality which is unable to see or comprehend environmental protest as anything but something that risks the free flow of capital. Moreover, while statements of neoliberal rationality lean toward describing it as a totalizing logic—something that we cannot think outside of—I contrasted this with examples of protests in defense of public things. These examples both provide an example of thinking outside of neoliberal logic, and the demos gathering in public is also a site from which further thinking and resistance can take hold. Nonviolent protest in defense of public things will continue to attract attention from those committed to maintaining the state-corporate symbiosis. Working in defense of public things is not a cure for laws or policing practices that designate protesters as terrorists. However, as movements grow it is easier for the demos to see regressive laws for what they are and to act in concert to change them. Individuals cannot do this in isolation. It takes a broad interpretive community to make cracks in them (Holloway 2010). And while neoliberalism might be the dominant logic today, I contend that it is precisely at this juncture that we need to return to public things and revitalize their potential to constitute us as democratic citizens working to protect the common good. Honig agrees and argues: perhaps it is useful to think about public things now precisely because it is not quite too late to defend those we still have, to render them more fully accessible and egalitarian, and to generate or promote new ones if we can appreciate their constitutive necessity to democratic life and act in concert to secure them. (Honig 2017, 15)

The targeting of environmentalists 37

Notes 1 Adelaide Law School. Please direct correspondence to [email protected]. A lot of the thinking in this chapter came from conversations and collaborations with Mary Heath and Sal Humphreys. I owe a great debt to our time working together. 2 Strongs is the only company with an ongoing public presence. See www.strongsecurity. com.au/about-us/.

References ABC. 2012. “Philosophy and the World.” Accessed February 21, 2013. www.abc.net.au/ tv/qanda/txt/s3473507.htm. ABC Four-Corners. 2006. “The A Tea.” Accessed January 31, 2019. www.abc.net. au/4corners/the-a-team/8953430. Allard, T. 2014a. “Undercover: Spies Hired to Infiltrate Anti-Coal Campaign.” Accessed January 31, 2019. www.smh.com.au/national/undercover-spies-hired-to-infiltrate-anticoalcampaign-20140601-39ci6.html. Allard, T. 2014b. “Idemitsu Admits it Hired Contractors in Coal Spies Operation.” Accessed January 31, 2019. www.smh.com.au/national/idemitsu-admits-it-hired-contractors-incoal-spies-operation-20140602-39esi.html. Allard, T. 2014c. “Coal Spies: The Secret World of Black Ops.” Accessed January 31, 2019. www.smh.com.au/nsw/coal-spies-the-secret-world-of-black-ops-20140606-39ofv.html. Australia-New Zealand Counter-Terrorism Committee. 2015. “National Guidelines for Protecting Critical Infrastructure from Terrorism.” Accessed January 31, 2019. www. nationalsecurity.gov.au/Media-and-publications/Publications/Documents/nationalguidelines-protection-critical-infrastructure-from-terrorism.pdf. BBC News. 2019. “Extinction Rebellion: High Court Rules London Protest Ban Unlawful.” Accessed November 6, 2019. www.bbc.com/news/uk-50316561. Brodeur, J.P. 2010. The Policing Web. London: Oxford University Press. Brown, W. 2015. Undoing the Demos: Neoliberalism’s Stealth Revolution. New York: Zone Books. Brown, W. 2019. In the Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West. New York: Columbia University Press. Brunet-Jailly, E. and J.F. Martin. 2010. Local Government in a Global World: Australia and Canada in Comparative Perspective. Toronto: University of Toronto Press. CBC News. 1999. “More Details of RCMP ‘Dirty Tricks’ Revealed.” Accessed April 8, 2017. www.cbc.ca/news/canada/more-details-of-rcmp-dirty-tricks-revealed-1.168362. CBC News. 2000. “RCMP Investigator Testifies in Ludwig Trial.” Accessed April 8, 2017. www.cbc.ca/news/canada/rcmp-investigator-testifies-in-ludwig-trial-1.209171. Critical Infrastructure Centre. 2018. “What is the Critical Infrastructure Centre?” Accessed January 31, 2019. www.ag.gov.au/Consultations/Documents/critical-infrastructure-bill/ CIC-factsheet-what-is-the-critical-infrastructure-centre.pdf. Crosby, A. and J. Monaghan. 2018. “Settler Colonialism and the Policing of Idle No More.” Social Justice 43, no. 2: 37–57. Dorling, P. 2012. “ASIO Eyes Green Groups.” Accessed January 31, 2019. www.smh. com.au/federal-politics/political-news/asio-eyes-green-groups-20120411-1wsba. html#ixzz1rmOVNarN. Foucault, M. 2000. The Essential Works of Foucault 1954–1984, Volume 3. London: Penguin Press.

38

Peter D. Burdon

Goldsmith, A. and J. Sheptycki. 2007. Crafting Transnational Policing: Police CapacityBuilding and Global Policing Reform. London: Hart Publishing. Hamilton, C. 2014. “Is Spying on Anti-Coal Activists Just the Tip of the Iceberg?” Accessed January 31, 2019. https://theconversation.com/is-spying-on-anti-coal-activistsjust-the-tip-of-the-iceberg-27570. Hocking, J. and C. Lewis. 2008. Counter-Terrorism and the Post-Democratic State. London: Edward Elgar. Holloway, J. 2010. Crack Capitalism. London: Pluto Press. Honig, B. 2017. Public Things: Democracy in Disrepair. New York: Fordham University Press. Horner, D. 2016. The Spy Catchers: The Official History of ASIO, 1949–1963. Sydney: Allen and Unwin. Howe, M. 2015. Debriefing Elsipogtog: The Anatomy of a Struggle. Halifax: Fernwood Publishing. Kinsman, G., K. Dieter and M. Steedman. 2000. Whose National Security? Canadian State Surveillance and the Creation of Enemies. Toronto: Between the Lines. Kinsman, G. and P. Gentile. 2010. The Canadian War on Queers: National Security as Sexual Regulation. Vancouver: UBC Press. Leahy, S. 2013. “Canada’s Environmental Activists Seen as ‘Threat to National Security.’” Accessed April 8, 2017. www.theguardian.com/environment/2013/feb/14/ canada-environmental-activism-threat. Lipschutz, R. 2009. “Imperial Warfare in the Naked City: Sociality as Critical Infrastructure.” International Political Sociology 2, no. 3: 204–218. Lubbers, E. 2012. Secret Manoeuvers in the Dark: Corporate and Police Spying on Activists. London: Pluto Press. Lynch, A., N. McGarrity and G. Williams. 2015. Inside Australia’s Anti-Terrorism Laws and Trials. Sydney: NewSouth Publishing. Macdonald-Smith, A. 2017. “Engie to Start Closing Down Hazelwood Power Station this Week.” Accessed January 31, 2019. www.afr.com/business/energy/electricity/ engie-to-start-closing-down-hazelwood-power-station-this-week-20170314-guy33s. McCarthy, S. 2017. “Canada’s Energy Sector Braces for Rising Threat from Activists.” Accessed April 8, 2017. www.theglobeandmail.com/report-on-business/industry-news/ energy-and-resources/canadas-energy-industry-ponders-how-to-face-activist-threats/ article32833049/. Millar, M. 2013. “Harper Government’s Extensive Spying on Anti-oilsands Groups Revealed in FOIs.” Accessed April 8, 2017. www.vancouverobserver.com/politics/ harper-governments-extensive-spying-anti-oilsands-groups-revealed-fois?page=0,1. Monaghan, J. 2017. Security Aid: Canada and the Development Regime of Security. Toronto: University of Toronto Press. Monaghan, J. and K. Walby. 2017. “Surveillance of Environmental Movements in Canada: Critical Infrastructure Protection and the Petro-security Apparatus.” Contemporary Justice Review 20, no. 1: 51–70. Morton, A. 2018. “Tasmanian Liberals vow to Restore Anti-protest Laws Struck Down by High Court.” Accessed February 19, 2018. www.theguardian.com/australia-news/2018/ feb/19/tasmanian-liberals-vow-to-restore-anti-protest-laws-struck-down-by-high-court. Nelson, J. 2015. “Government’s Anti-terror Laws Target Anti-pipeline Foes.” Accessed February 19, 2018. www.policyalternatives.ca/publications/monitor/government’s-antiterror-laws-target-anti-pipeline-foes. Potter, W. 2012. Green is the New Red: An Insiders Account of a Social Movement. San Francisco: City Lights.

The targeting of environmentalists 39 Roach, K. 2011. The 9/11 Effect: Comparative Counter-Terrorism. London: Cambridge University Press. Rose, N. 1999. Powers of Freedom: Reframing Political Thought. London: Cambridge University Press. Taylor, M. and D. Gayle. 2018. “Dozens Arrested After Climate Protest Blocks Five London Bridges.” Accessed November 18, 2018. www.theguardian.com/environment/2018/ nov/17/thousands-gather-to-block-london-bridges-in-climate-rebellion.

3

Ecological jurisprudence beyond Earth Toward an outer space ethic Reed Elizabeth Loder1

Introduction Proponents of ecological jurisprudence urge that law should reflect the interrelatedness of nature and foster the resurgence of Earth’s systems and processes (Berry 1999; Cullinan 2011). Because science reveals connections between Earth and the universe in origins and systems, “Earth” jurisprudence should encompass outer space, which is increasingly subject to human intervention. Humans are already adapting to space with flawed attitudes about their relationship to the nonhuman world. They are replicating the idea that space is a resource subject to ownership, disregarding critique of how this affects natural and human justice on Earth. Law and ethics must address extra-earthly questions because of repercussions throughout the universe of recklessly following customary ideas. We have a fleeting opportunity to remake our ethical selves as interdependent beings limited in knowledge and prowess as we nurse a ravaged planet and venture outward. This deep change in perspective is vital to salvaging Earth as well as the heavens. The property and commercialization regimes that dominate life on Earth are already infusing outer space in the United States Commercial Space Launch Competitiveness Act of 2015 (“Space Act”) that has enjoyed the status of good law for about five years. The legislation passed in a notoriously recalcitrant Congress with bipartisan support during President Obama’s administration, but it was mostly remarkable because of its audacity in granting property rights to private US entities and individuals who harvest resources from asteroids or other celestial bodies: A United States citizen engaged in commercial recovery of an asteroid resource or space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States. (51 U.S.C.§51302(a)(3) (Supp. III 2015)) The “international obligations” the Space Act mentions are mostly the Outer Space Treaty that prohibits any signing country, including the United States, from asserting sovereignty over any celestial body:

Ecological jurisprudence beyond Earth 41 Outer Space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. (Art. II, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies [hereinafter OST], Oct. 10. 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (1967)). In other words, a successful mining company could own the material extracted from an asteroid under the Space Act, but not the asteroid itself. For some, this is just the sort of audacity that makes us human. It permits us to solve earthly problems of dwindling natural resources and tap a new frontier. According to John Lewis, lead scientist of Deep Space Industries, one of two companies prospecting near-Earth asteroids and planning their profitable utilization, “The emerging asteroid mining industry has extremely ambitious intentions. It is within the realm of possibility that their work may usher in a change in global economics as profound as the Industrial Revolution” (Lewis 2015, 6). Those familiar with the “bundle of rights” metaphor of property will recognize the attributes of ownership, or “sticks,” the Space Act protects (Dukeminier et al. 2014, 102–104, 108–109). The particular rights include use and possession all the way to the superior right to transfer owned resources for profit. The Space Act bestows exclusion, or the right to grant or deny access to the owned thing (Dagan 2012, 1413–1415). It directs the president to “promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference” to the extent compatible with international law and under the authority and oversight of the federal government (51 U.S.C. § 51302 (a)(3) (Supp. III 2015)). This chapter takes the position that legislation such as the Space Act is a grave misstep. It is of questionable international legality, as others have noted, in that it belies the no sovereignty principle and commitments of the Outer Space Treaty to international cooperation and equal access to space. If celestial resources are to be treated as property, a new ownership model should incorporate shared benefits and reciprocal obligations, including obligations to the space environment. The Space Act direction also reinforces deficient ecological character that plagues human history, lauding collective traits like rashness, hubris, arrogance, glory and greed over sorely needed doses of humility, beneficence, gratitude, patience, respect for living and non-living nature and habitual reflection about these matters. The change needed to secure a flourishing future for all of nature, including humans, will not emerge through economic incentives or piecemeal changes in laws. An overhaul of law must focus on systems, processes and beings and their interrelationships and must view humans as part of complex nature. The deeper overhaul of the human heart that will accomplish enduring change should identify ecological virtues and encourage these traits in individuals and collectives. The ethical issues in space exploration are actually profound, although discussion tends to be limited to narrow, albeit important, problems like celestial collisions

42

Reed Elizabeth Loder

and orbital debris (Davey 2017). The core arguments of this chapter are based on environmental ethics, considering ecological virtues, respect for inanimate nature and the importance of developing a stranger ethic alongside the more familiar ethic of place.

Why the race to exploit space? So far the celestial bodies humans see as useful are most proximate to Earth, namely the moon, close asteroids and Mars. Because the Space Act explicitly contemplates “commercial recovery of an asteroid resource” (51 U.S.C. § 51302(a) (3) (Supp. III 2015)), it makes sense to discuss why asteroids might be exploited. Like planets, asteroids orbit the sun (NASA SCIENCE n.d.). They are “wild” in their irregular shapes and “tumbling motions,” sort of like sand dunes on Earth (Lewis 2015, 116, 118). Asteroids carry information about planetary and solar history (NASA SCIENCE n.d.). Asteroids within a certain distance of Earth, including within Earth’s orbit, are called near-Earth asteroids (“NEA”) (Lewis 2015, 13–14). Asteroids are dynamic by nature, and humans hope to make them more so. Within ten years NASA plans to capture and move a small NEA to orbit the moon (131). Space planners believe they can use orbits of relocated asteroids to reach destinations (213) deeper in space. This would enhance the economic prospects of space exploration and provide knowledge beyond our galaxy, even leading to discovery of life. Increased access to the heavens may become necessary if humans continue to overpopulate Earth and deplete its vital resources. Someday people may inhabit other bodies besides Earth, with the usual suggestions of the moon or Mars (Sparrow 2015, 161, 163). Water is plentiful on some asteroids and could sustain organisms traveling and living in space, including humans, animals and plants (Lewis 2015, 99, 127). Because asteroids have nearly non-gravity surfaces (119), moving water within space may be more efficient than from Earth. Asteroid water also could be used to make rocket fuel in situ, overcoming an impediment to deeper space travel (128). The biggest draw of asteroids to private companies is the prospect of finding valuable metals. Some asteroids are likely to contain metals such as iron, gold and commercially valuable metals in the platinum group—“platinum, osmium, iridium, rhodium, ruthenium, and palladium” (Lewis 2015, 109). Asteroids also contain so-called “rare Earth” metals that are common but dispersed on the Earth’s crust, so they are difficult to harvest (Astronomy Source 2019). Extraction on Earth requires techniques expensive in both production and environmental terms. Some experts question the urgency of tapping space for metal resources. Professor Julie Michelle Klinger acknowledges the importance of technologies made with rare Earth elements in renewable energy, medicine and communications industries, although she also notes destructive military and surveillance uses of the metals (2017, 66). Klinger questions both the assumptions of rarity and that dire environmental harm must accompany extraction and processing of these substances (3, 34, 63). She criticizes appeals to the greater good of mining to

Ecological jurisprudence beyond Earth 43 “rescue the human race” (33). Images of the space “frontier” are “conjured” for geopolitical purposes, according to Klinger, and are more about acquiring power and dominance than replenishing supplies of dwindling resources on Earth (230, 231). She claims that miners can produce rare Earth metals without penetrating new sites by reprocessing existing waste areas and by recycling elements in mine tailings (238–239).

Compatibility with the Outer Space Treaty of 1967 Although the vastness of space may contain numerous rich bodies, technological and financial challenges may severely limit access. As a result, a few companies may secure a near-monopoly, which is inconsistent with the principle of “free access” for the “province of all mankind” central to the Outer Space Treaty (OST, art. I). Instead, mining promises to accentuate disparities of wealth that plague a neoliberal society. The Space Act also impedes cooperation in the flow of scientific information that the Outer Space Treaty promotes (OST, art. I). The Space Act does not restrict miners from treating their mining discoveries as intellectual property, instead promising general freedom from “harmful interference” (51 U.S.C. § 51302 (a)(3) (Supp. III 2015)), suggesting that trade secrets may be within the bundle of property expectations. Congress has disregarded the Treaty’s goal, “to contribute to broad international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes” and “contribute to the development of mutual understanding and to the strengthening of friendly relations between States and peoples” (OST, Pmbl.) Unilateral legal action that grants resource rights to private entities of one nation is a direct affront to the overarching commitment to collaboration. The companies interested in mining would respond that restrictions would dampen the incentive to innovate and accept the risks and expense of space prospecting and extraction. Yet, they fail to acknowledge that “private” innovation is dependent on more than 60 years of public investments in space programs around the world. Corporations should not receive unfettered property rights as rewards for creative energy because public commitments, priorities and sacrifices of other public goods have paved the way for that innovation. If outer space is subject to property regimes, this could look different. The Space Act could have bowed at least stiffly to the OST commitment to sharing benefits of space. Congress could devise a method of allocating rights in advance to actors not yet equipped to visit celestial bodies, similar to the allocation of satellite orbits before actors were ready to launch. Developing countries could receive reserved future mining rights, and overall acquisitions could be limited to prevent concentrations of wealth. Mining companies could have initial time and profit limitations to facilitate later stages of participation. A regime could cap the time a company could mine a particular area and restrict the overall number of mining sites for a single entity. Private miners could be required to pay a fee (tax) for property rights that could be distributed among OST nations, or a royalty

44

Reed Elizabeth Loder

system could distribute profits on an equitable basis that a designated international institution could determine. Respecting sharing of scientific information, private companies could not protect mining discoveries as intellectual property. A Space Act, or similar legislation, represents an opportunity to fashion an idea of property based more on cooperative relationships and reciprocal obligations than exclusive ownership (Alexander et al. 2009, 744). Some existing property laws exhibit a more communal view. Even rights to exclude are subject to more important rights of access to safeguard federal rights (State v. Shack, 217 A. 2d 369, 372–373 (N.J. 1971)), prevent discrimination (Fair Housing Act, 42 U.S.C. § 3604 (2012), and protect residential tenants from unsafe conditions (Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970)). Environmental and land use regulation also limit uses of private property, sometimes interfering with lucrative development (Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 129, 132, 138 (1978)). The companies on the verge of reaping advantages have benefited from a common space venture with potential to affect posterity. The broad reward of exclusive private property does not match this posture. It is feasible to adopt a communal framework even within a country long laden with exclusivity of ownership. Scotland is the country with the “most concentrated pattern of large scale private land ownership” in the world (Wightman et al. 2003). In the Outer Hebrides, especially, community members are buying private land and setting up communal trusts on behalf of new joint owners, often for public purposes such as forestry, wind power or national parks that benefit both the people and the environment (Mackenzie 2010, 324, 328, 336, 338). This radical disruption of exclusive ownership reveals changing attitudes toward land and nature. Such movements suggest that an extreme concept of exclusive private property foisted on the space environment may be starkly out of step with evolving values. Space policy could capture a precious opportunity at a relatively raw stage, relying on the scaffolding of a 60-year-old treaty supporting communal values.

Ecological jurisprudence and risks of off-Earth property A growing movement variously identified as “ecological jurisprudence,” “ecological law,” “Earth jurisprudence” and “Earth law” urges law reform to reflect the ecological interdependency of everything in the universe (Cullinan 2011, 78). Although ecological jurisprudence advocates an ecocentric approach to restore and preserve Earth systems and processes, its language strays beyond planetary boundaries. Principles of quantum physics apply to the universe as a whole, and the common origins of our solar system (Tyson et al. 2016, 218–121), planet and life invite and even demand a broader frame of reference. Space law developed accordingly would not place individual or corporate rights of ownership above the rights of present and future humans and nonhumans and natural processes and systems. Owners would have ecological responsibilities to refrain from degrading celestial places (Freyfogle 2011, 275). Implementing ecological jurisprudence requires revisioning law’s cultural foundations. Dominant Western belief supports human separation from the rest

Ecological jurisprudence beyond Earth 45 of nature and superiority over the nonhuman world (Cullinan 2011, 44–45). At best, humans deem themselves planetary managers who “can do things better than nature” (52). At worst, an exploitative attitude has despoiled our planet and caused a “sixth mass extinction” (36). Western economies bound to growth fail to protect ecological interests and nonhuman species and reduce the Earth and its nonhuman inhabitants to “objects for the use of humans” (63). This commodity approach now migrating to space is incompatible with a modern scientific worldview. Quantum physics poses “webs of relationships interacting in a network fashion with other systems” (Burdon 2011a, 88), with subatomic particles viewed more as “bundles of energy” than things (Capra 2010, 202–203). Nature is complex, structurally diverse and interdependent (Burdon 2011a, 89). Nowhere is this view more important than in space, where knowledge is piecemeal and systemic interrelationships remain mysterious. For all of the uncertainties on Earth about distant effects of tampering, the unknowns in space are orders of greater magnitude. Scientists know little about the composition of unvisited space bodies and even less about interactions of systems in space. Corporations have primary legal obligations to maximize shareholder profit, which is too narrow a perspective to protect nature. Concerning specific potential harms, some target bodies may contain material that could help to explain the origins of microbial life (Roth 2016, 829, 865–866). Asteroids may not turn out to be “lifeless rocks” (Merchant 2013) but may contain irreplaceable information. It is not possible to anticipate when a landing and retrieval project would disrupt material of scientific importance. Private control of mining presents the risk of “backward contamination” in retrieving space matter and bringing it, or its traces, to Earth (Merchant 2013). The OST holds states financially responsible for damaging launches from their territory (OST, arts. VI, VII, IX). The OST also covers “forward contamination,” which affects the target celestial bodies (OST, art. IX). These are just a few risks and corporate disabilities in prospecting space. The ethics of handling uncertainties on Earth are formidable but become unwieldy with knowledge ever more scant. Precaution is essential in this singular circumstance of unknowns. Space actors should operate from the humble perspective of ignorance. Francis Bacon’s seventeenth-century idea that humans have unbridled capacity to improve their circumstances through knowledge, technology and dominance of nature (Brown 2008, 168) dangerously infects the vision of space as a new frontier.

Expanding “Earth” jurisprudence off-Earth Given the daunting task of rewriting foundational laws and dispelling long-standing ideas about human superiority on Earth, it is no wonder that proponents of ecological jurisprudence might be wary about extension to outer space. However, space might be a fruitful platform for reform because a nearly blank legal slate provides an opportunity to rethink some confounding ideas. Several considerations do weigh against expanding Earth jurisprudence to space, however. Entering an arena where the issues are highly speculative may add to what Al Gore called “the bone-weariness

46

Reed Elizabeth Loder

of the damned,” or a feeling of being overwhelmed, instead of motivated, by the scale of problems (1992, 241). A perhaps facile response to this concern is that a clean slate could be inspiring. A more pragmatic answer is that a space framework is already emerging under the clutches of faulty ideas, so we lack the luxury to wait. Hannah Arendt raised another off-Earth problem about space exploration. Arendt wondered whether a celestial perspective might decenter humans by alienating them from their home (Arendt 1954, 266–267, 271–273). Astronauts have reported a sense of “awe and belonging” upon viewing our planet from space (Milligan 2015b, 33, 39), but Mike Mullane also described “a powerful sense of detachment from the rest of humanity” from his perspective on a space shuttle (Milligan 2015b, 33, 39). In short, a universe identity may be conceptually and psychologically straining for humans. Such alienation even enters science fiction. Despite utopian aspirations of some characters in the novel White Mars, 31 visitors committed suicide upon learning they were stranded on Mars (Aldiss and Penrose 1999, 52–53). Descriptions of “unyielding rock” and “absence of the most meager sign of any living thing” prompted a character to remark: “Mars resembles a tomb, a museum” (52). One can question whether human identity is indelibly “earthly.” Identity has evolved as legal personhood has expanded to slaves, married women and children (Stone 1972, 450–455), evolving from moral sensibilities. Perhaps humans could similarly enlarge identity beyond Earth. Provided a swelled sense of self does not lead humans to consign their earthly home to ruin or to deny their collective role in the wreckage, a decentered human identity aloft might be positive. Earth jurisprudence also has internal problems and will need careful development before generating workable laws beyond aspirational principles. Some of these deserve attention before expanding the scope to space. The largest problem involves a central purpose of law, which is to settle conflicts. The literature of Earth jurisprudence outlines lofty mutual rights of all members of the universe but says little about how these rights should be weighed in resolving inevitable clashes. Thomas Berry emphasizes that “every living being has rights” based on existence (2011, 228) that are qualitatively, not quantitatively, different, such that an insect would hold different rights than a river based on its particular role within a functioning system (228–229). Berry offers few insights into what would happen when these rights conflict in cases, for example, where river temperatures fluctuate enough to threaten insects, or insect populations create river pollution. We only know, under Earth jurisprudence, that both entities would matter, and resolution would mutually benefit all affected, even those who are not legal parties to the conflict. Some complicating issues include the boundaries of the river, causes of temperature changes, stability of insect populations, rarity of insect species, other beings affected and the flow of the river. These illustrate complexities of numerous categories with presumptively equal rights—here nothing less than all living individuals and long-term riverine and other ecological processes. Although ecological law as a human device mostly settles conflicts between humans and nonhuman beings and systems, the concept of universal existence

Ecological jurisprudence beyond Earth 47 rights means that law would sometimes resolve priorities within nonhuman spheres, with human representatives speaking for optimal natural conditions. This is more challenging than deciding which human interests must yield to preserving systems and processes because it is easier to identify the character and strength of human interests. Although a regular function of law is to draw lines, it is difficult to set priorities starting with radically egalitarian principles that cross such diverse ecological categories. Those developing ecological law theory need to provide contextual applications to illustrate how the ideals can work in practice. Illustrative case studies would assist in identifying criteria and priorities that could lend concrete guidance to legal decision-makers as well as courage to lawyers who advocate bold framework changes. Outer space poses innumerable extra challenges because we know so little about the issues travelers will face and the information they will glean.

Environmental ethics beyond Earth Like all law, space law will ultimately imply judgments about what things have value. In the scheme of the Space Act, the profitability of a few wealthy corporations with technology and resources to mine space outweighs the interests of humans and nations lacking that capacity. The Space Act also bypasses environmental issues in mining, leaving a cavern in environmental ethics. The legislation ignores deep remedial questions about why humanity has despoiled the Earth despite increasing knowledge of the harms we are inflicting. Why do humans reflexively assume that space is our resource to exploit? What does that say about our sense of our relationship to the nonhuman world? If something in that outlook needs to change for the sake of human survival, if not ethics, what traits should individuals and societies try to develop that will instill constructive attitudes in the new celestial world and possibly reorient attitudes at home? These are all questions of environmental ethics. Environmental ethics is mostly tethered to Earth. This is not surprising or parochial, given unsolved issues of great complexity and relative unfamiliarity with worlds beyond. Still, the Space Act of 2015 suggests that human-centric ethics may soon wreak havoc on other worlds. The audacity of the Space Act shows how little consideration policymakers have given to ethical obligations in space. Rather, people glibly assume that space is there for adventure, resources and even a substitute habitat if conditions worsen at home. A barrage of critique has weakened the idea that humans can use their special capacities for betterment of the planet. A correlated idea that ecological jurisprudence accepts is that the nonhuman world has value of its own. “Nonanthropocentric” ethics finds value in nonhuman nature apart from its utility to humans and has emphasized living beings as sources of such value, often called “intrinsic” or “inherent” (Taylor 2017, 177–178). Much debate has centered on which nonhuman forms and scales of life have value. Do sentient beings deserve moral consideration because of their capacity to experience pain and pleasure (Singer 2017b, 96, 100)? Or does ethical status depend more broadly on

48

Reed Elizabeth Loder

consciousness of having a past and future and awareness of oneself as a “subject of life” (Regan 2017, 106, 11–12)? Broader still, does any living being, including a plant, have ethical value because it has interests reflecting the nature of its species (Taylor 2017, 178–179)? Regarding issues of scale, does life at a micro level, for example, microbacteria, have value because of capacities of creative adaptation (Rolston 2017, 132–133)? These questions are important in the context of outer space, where the likely accessible forms of life are not complex or sentient (Tyson et al. 2016, 156–157, 161–163). Finally, can a functioning macro-system have self-generating qualities of life, such as reflected in the Gaia hypothesis that Earth itself is a self-regulating system composed of a “series of interacting ecosystems” (Margulis 1998, 120)? The life-centered bias of contemporary environmental ethics weakens its applicability to the few accessible regions of outer space. These places do not promise sentient life, and almost certainly not life as complex as human (Tyson et al. 2016, 156–157, 161–163). This life-orientation might free space explorers from believing they are under ethical constraints. Rocky asteroids might receive especially slight concern, since rocks are often considered the epitome of dead and valueless objects (Milligan 2015c, 106–107). Another scalar question in a life-centered framework is whether only individuals or also living systems have value. Most life-based ethics are tied to the special value of individuals. In contrast, holistic life-centered ethics extend value to systems, with Gaia a large-scale extension to regenerative processes as a whole (Margulis 1998, 2). Aldo Leopold’s claim in the late 1940s that the land has collective value was an example of holistic environmental ethics (2017, 239). Some ethicists claimed that systemic effects on collectives like species and ecosystems exemplify environmental considerations, even if this sometimes means that the individual must yield—deer must be culled to manage the herd (Callicott 2017, 253–254). An ecological ethic must be prepared to recognize both systemic and individual concerns as the context demands and should not fix priority on a holistic approach. Another scalar perspective is temporal. Environmentalists emphasize that overuse of the Earth is diminishing biodiversity. Although the scale of this concern extends beyond the present, the life-centeredness remains. The probability of encountering contemporaneous life within our galaxy has waned with increasing knowledge (Callicott 1986, 227, 242; Milligan 2015c, 135–136), and the discovery goal has shifted more to discovering past life on Mars or elsewhere (Milligan 2015c, 116–117). Such a finding would not raise ethical concerns about protecting living beings but, instead, conserving things of historical and scientific value. Although it is probable that galaxies outside of the Milky Way hold complex life, the limits of humanity make that discovery practically irrelevant for the foreseeable future since we may obtain access to only a small slice of the universe (Callicott 1986, 240). Thus, policymakers might ask whether we should invoke space ethics only when needed to protect life. Better to focus on known earthly problems than on ethics as a fantasy pursuit.

Ecological jurisprudence beyond Earth 49

Life and non-life This makes sense if life is all that counts ethically. Even if life counts most, exploration beyond our planet raises unsettling questions about the narrowness of current ethics. Space exploration raises crucial ethical questions about the non-living things we are seeking to reach. If life is on Mars, it is probably microbial and deep within the planet (Milligan 2015c, 123–124). Such a discovery would not expose us to beings with sentience but would offer possible clues to the origins of all life and our solar system (Oduntan 2015). Traces of life would be worth preserving as sources of vital and possibly irreplaceable information. Remnants of life would be important but possibly only for instrumental purposes. Perhaps microbial life discovered deep within Mars would have intrinsic value simply because it is life. That would be an ethic that values life well beyond sentience, or the capacity of a living individual to have interests related to its biological nature, and it would be closer to a view that all of nature objectively has inherent value. Yet, microbes on Earth do not have moral standing in most ethical views, despite growing knowledge of their vital role in earthly processes (Milligan 2015c, 118). When microbial life threatens human health, for example, scientists demonstrate little compunction about suppressing and even eradicating it. Thus, the ethical status of celestial microbes is related to preserving their unknown features more than any inherent value. Any judgment of intrinsic value would be provisional and weak. The physical context of discovery of the earliest forms of life is generally not living itself—microbes are likely embedded in rocks, and rocks are considered dead objects in non-Indigenous Western perspectives. An object’s status as “not living” should not be equated with “lifeless,” however, because this attitude does not respect a “cradle of nature” possibly revealing something of life’s origins (Oduntan 2015). Referring to asteroids as lifeless rocks devalues them and makes their plunder appear harmless. The line between life and non-life is not morally decisive when viewing objects as providing insight into the universe.

Last person “vandals” What then are our duties to celestial objects that do not contain life? Philosophers have struggled with hypothetical questions such as whether it would be wrong for the last human to destroy an unoccupied inanimate celestial body, or some earthly object, if no one faced harm (Routley 1973, 205–210). Questions of this nature are a way to test ethical intuitions about obligations to inanimate things. There are at least two alternative but related ethical approaches to these questions. On the first “virtue ethics” approach, the last person’s destruction of a lifeless celestial body strikes some as intuitively immoral, despite the hypothetical guarantee of no harmful consequences (Routley 1973). They argue that the act is analogous to vandalism, involving wanton destruction for no good reason (Milligan 2015c, 97), and showing meanness of spirit in infliction of gratuitous harm.

50

Reed Elizabeth Loder

The conduct reflects the flawed character of a person who has no self-restraint. Virtue ethics is the field of moral philosophy that places more importance on people’s traits, and how to cultivate them, than on right action, with the guiding idea that the person of good character is likely to act well much of the time (Hursthouse 1999, 1–3). Why should we care about the character of the last human? Consider how relatives across generations feel shame for horrors dead family members unleashed, even though the distant relatives bear no personal responsibility for those travesties. For example, descendants of slave owners have expressed feelings of transposed accountability for acts of their slave-holding ancestors (Ball 1998, 14). The descendants might feel shame because others judge their family, unlike the last person in the hypothetical who judges only herself. On a virtue ethics analysis, however, self-appraisal matters because the worth of a person emerges from patterns of conduct and motivations throughout one’s life, and the cultivation of personal character is one of the purposes of a good life (Hursthouse 1999, 10). Applying the destruction hypothetical to space at least suggests that tampering with space has ethical implications apart from repercussions on Earth. Even without destruction, a virtue ethicist could conclude that a commercial space miner disrespects unexplored terrain that might contain scientific information (Oduntan 2015), disregards other countries that lack capital for such an enterprise (OST, art. 1) and displays arrogance about extraction damage. Such behavior demonstrates hubris about the knowledge and capacities humans have to utilize the untapped universe in reckless defiance of environmental and safety risks (Arnould 2011, 34). Instead, space explorers should be guided by virtues of humility, restraint, generosity toward fellow earthlings, and, from an ecological jurisprudence perspective, everything existing in the universe. The potential vices in those who seek to exploit space resources for profit do not necessarily settle the matter from a virtue ethics perspective, however. In fact, proponents of celestial mining are not shy about making virtue-based arguments of their own. Rick Tumlinson, co-founder of Deep Space Industries, lauded the Space Act for, “[the] opening of space to the people” (Turk 2015). Peter Diamandis, co-founder of Planetary Resources, takes the populist appeal a step further, asserting that we have a “moral obligation to become an interplanetary species” (Riederer 2014). The explorers do take financial risks and deserve respect for innovation, but self-perceptions of altruism ring hollow here. No program encourages that benefits will accrue to anyone but the corporate prospectors. To Americans, virtues of heroism, adventure and courage have particular resonance with national frontier history and the pioneers who bravely penetrated the New World. Yet, those virtues should not overshadow the environmentally destructive and genocidal impact to Native Americans of that historical venture (Cronon 1996, 79). The miners possessing the capital and expertise to exploit space for profit are risking destruction of irreplaceable material, possibly including forms or residues of life. Virtue analysis weighs strongly against this venture overall.

Ecological jurisprudence beyond Earth 51 Curiously, a cultural anthropologist examined the ethos of the “NewSpace” folk who plan entrepreneurial ventures in space and found that profit and expanding capitalism were not the deepest motivations of some (Valentine 2012). David Valentine noted “utopian visions at the heart of some NewSpace endeavors” (1046, 1050, 1052). Space planners’ grandiose ideals do not absolve them from virtue ethics problems, however. Indeed, plans to terraform Mars or other celestial bodies to make those places suitable for human habitation is hubris at an extreme. The ambition relies on an Enlightenment faith in reason gone awry, throwing restraint to the wind and relinquishing Earth to a failed experiment instead of a precious home, inspiring virtues of gratitude and care. Instead of accepting ignorance as endemic to the human condition and a positive font of restraint, mystery and humility (Brown 2008, 168, 184–185), the NewSpace explorers rely spectacularly on progress in science and technology to master nature. A second ethical approach to inanimate objects is value-based. A deeply entrenched strain of Western thought treats the natural world as essentially valueless, but susceptible to acquiring value through human activities. According to John Locke, “Nature and the earth furnished only the almost worthless materials as in themselves” (Locke [1689] 2015, 118, Para. 43). This split between human and natural value pervades American property law down the ages. Making the land productive and economically valuable are core values of Western ideology. To environmental ethicist Holmes Rolston III, value “is present in living organisms and their species lines” (2017, 130). For Rolston, “[a] sentient valuer is not necessary for value” (136). Value is inherent in creative capacity, evident in living beings, species maintaining identity and in planetary history (131). Rolston traces value to productiveness and randomness of the universe in formative principles of creativity and diversity (1986, 157–161). He also recognizes aesthetic values and wondrousness of particular space features, such as planetary canyons (155–156). Here virtue and value ethics intertwine. The wondrous value of being inspires the virtuous emotion of gratitude (Loder 2011, 406–416). Ecological gratitude is a response to the natural world as a source of mystery, wonder and awe that both connects humanity to the wider universe and shrinks the human role within it, changing one’s overall way of seeing the world (383, 403). Thomas Berry argues that people today live in a “moment of grace,” a transitional time with an undefined direction (Berry 1999, 196). This is not a time of complacency but of grave responsibilities (200–201). Centuries of distorted vision have pushed Earth to the brink, and powerful systems of economics and law reinforce the notion that nature is endlessly amenable to human use. Berry’s “great work” involves disrupting these models to respect the rights of natural beings, systems and processes (7). Finding support for expansive value in the origins of the universe, Berry tells a unifying origin story of planet and life formation from common processes and materials, despite coincidences that also created astonishing diversity (22, 25–29). Interestingly, Berry does not extend the great challenge beyond Earth, although he emphasized the interconnection and value of all things in the universe.

52

Reed Elizabeth Loder

Stranger ethics Many proponents of ecological jurisprudence emphasize place ethics as a way to foster care for Earth and its systems (Cullinan 2011, 82; Catchlove 2011, 97, 99, 102; Burdon 2011b, 66). Because ecological jurisprudence involves abstractions, such as “rights” of ecosystems and ecological processes, emphasis on places of attachment and on Earth as home can inspire passion and motivation (Moore 1996, 137–139). It is incongruous to encourage a bioregional ethic toward space since so few humans have ventured there and we know so little about its places. Affection for space is not likely to spread into a wider environmental ethic the way British writer Michael McCarthy’s recollection of the Dee estuary he hiked as a child expanded (2015, 12). We do have limited, common experiences with moon landings, and even the tragedy of the Space Shuttle Challenger indelibly marks history and culture. Photos of Earth from space are a kind of family album that teaches about the fragility and uniqueness of home. To protect space, however, we must recognize that not all ethics can emerge from familiarity, memory or affection for things of experience. Many people think of asteroids as rocks, and rocks as the epitome of non-living things. Stark distinctions blur upon learning that some space rocks contain fossilized information about the earliest ingredients of life. Respect is the appropriate attitude for things simply existing, and plunder is the epitome of disrespect. Yet, an ethic of respect need not be too measured. Ecofeminist Karen Warren illustrates this in her narrative of rock climbing: “I realized then that I had come to care about this cliff which was so different from me, so unmovable and invincible, independent and seemingly indifferent to my presence” (2017, 395). A commonsensical “do no intentional or foreseeable harm” ethic should guide space exploration, just as it does for vehicle operators, archaeologists, birdwatchers and hikers who enter lightly or untrammeled earthly places. An ethic extended to celestial bodies would most likely be based on similar respect for natural objects that justify restraint. Restraint certainly would not prevent humans from diverting an asteroid headed for collision with Earth (Olson 2012, 1037– 1038), or from exploring deeper space with the support of asteroid water (Lewis 2015, 99, 106). Stopping a collision is planetary self-defense, and using some off-Earth water to facilitate exploration increases appreciation of the universe. Yet, a negative “do no harm” ethic is not comprehensive enough. Some “stranger ethics” have affirmative components. For example, Peter Singer argues that every person has a duty to donate a portion of income to unknown people who lack food and basic resources if doing so will not compromise the donor’s well-being (2017a, 384–385). Albert Schweitzer encouraged everyone to assist living beings whenever possible—for example, by rescuing an insect from a pool of water (2017, 171). Singer’s ethic begins with sentient beings capable of suffering (2017b 100) while Schweitzer’s is based on overall “reverence for life” (2017, 171–172). An affirmative “stranger ethic” need not be life-centered, although its pull would be weaker. For example, hikers’ codes ask travelers to pick up refuse out of respect for the land (Leave No Trace n.d.). Desert visitors might shade a tiny pool of water

Ecological jurisprudence beyond Earth 53 as they walk on. People gather to clean beaches of detritus, human caused or not. Given current knowledge, humans would unlikely owe many affirmative duties to space objects, but that could change with increasing familiarity, if necessary, to fix damage, or possibly to “improve” a condition produced by destructive forces such as radiation. Still, we should not scorn, or seek to remake, planets like Venus, knowing of its scorching, radioactive environment that could never accommodate human or other familiar life (Tyson et al. 2016, 132). It would be “Earth chauvinism” (Rolston 1986, 154) to measure the values of celestial places relative to human interests. The astonishing aspects of space include stark diversity and unfathomable differences, not comparisons to our habitable world. This nonhuman character and unfitness is itself a source of wonder, mystery, respect and gratitude. The strangeness is a reminder of inherent human ignorance and smallness that should make us humble. Thus, stranger ethics has a central role to play in ethics generally. Because we will inevitably learn more about the moons of planets, probably land a person on Mars, and discover more about water and possible past life on that planet, less distant, place-based ethics may become increasingly relevant. If so, a space ethic will combine “stranger” components of awe, wonder and respect with something like the attachment and caring orientation of place belonging. Some Indigenous worldviews display simultaneous relations with local places and the wider universe, including the heavens. These perspectives illustrate local ethics that also connect to the universe. When the National Park Service was developing a Climbing Management Plan for “Devils Tower” National Monument in Wyoming, an Ethnographic Review Report found that Plains Indian tribes considered the Black Hills their ancestral homeland, and several had developed similar creation stories about the rock’s origins that had passed orally through the generations (Hanton and Moore 1993). N. Scott Momaday relates the Kiowa creation story of the “Tower” that expresses strong links through ancestry between the local place and the stars: Eight children were there at play, seven sisters and their brother. Suddenly the boy was struck dumb; he trembled and began to run upon his hands and feet. His fingers became claws, and his body was covered with fur. Directly there was a bear where the boy had been. The sisters were terrified; they ran, and the bear after them. They came to the stump of a great tree, and the tree spoke to them. It bade them climb upon it, and as they did so it began to rise into the air. The bear came to kill them, but they were just beyond its reach. It reared against the tree and scored the bark all around with its claws. The seven sisters were borne into the sky, and they became the stars of the Big Dipper. (Momaday 1998, 330) According to Momaday, “From that moment, and so long as the legend lives, the Kiowas have kinsman in the night sky” (1998, 330). Different stories of other Indigenous peoples exemplify emotional connections spanning unfathomable distances and supporting ethics that transcend Earth without the alienation that worried Hannah Arendt.

54

Reed Elizabeth Loder

The ecological approach to ethics and law naturally extends beyond Earth. Socalled Earth jurisprudence is founded on a broader connection to the universe, acknowledging astronomical knowledge of the Big Bang, other celestial bodies and life from a supernova star collapsing and dispersing neutrinos in a moment of massive violence (Swimme and Berry 1992, 48–49). Knowing that life is truly composed of stardust supports a worldview akin to that of some Indigenous peoples. Science reveals this link across time and space, but we are stuck on planet Earth in our ethical frame and not doing terribly well from that perspective. As Thomas Berry urged, an “intimate rapport with the Earth community and the entire functioning of the universe” can restore humanity’s place on the planet (1999, 19). In healing the planet, people must tap “that same power that brought the Earth into being, that power that spun the galaxies into space, that lit the sun and brought the moon into its orbit” (175).

Making ecological ethics cosmic It is time to expand our framework, not leaving Earth behind, but preventing humanity from transporting planetary damage throughout the universe. Legislation like the Space Act of 2015 projects our flawed institutions and competitive self-perceptions into a new arena. International law offers an alternative cooperative tone, with room to inject nonhuman perspectives, for a thoughtful view of our place in the heavens that could suppress faulty ideas about humanity that have dominated far too long. Now is the “grace period,” to borrow Thomas Berry’s phrase (1999, 196–197), not just to repair our frayed Earth but to create respectful ideals for the stranger space we scarcely know. Stretching aloft toward a better way might just make the “great work” at home easier to imagine.

Note 1 Acknowledgement: The author thanks the Virginia Environmental Law Journal for permission to publish this chapter partly related to an article, “Asteroid Mining: Ecological Jurisprudence Beyond Earth,” the author published in that journal, 2018. Virginia Environmental Law Journal vol. 36, 276–317.

References Aldiss, B.W. and R. Penrose. 1999. White Mars: Or, The Mind Set Free. New York: St. Martin’s. Alexander, G., E.M. Peñalver, J.W. Singer and L.S. Underkuffler. 2009. “A Statement of Progressive Property.” Cornell Law Review 94: 743–744. Arendt, H. (1954) 2006. Between Past and Future Penguin. New York: Penguin. Arnould, J. 2011. Icarus’ Second Chance: The Basis and Perspectives of Space Ethics. New York: Springer Wien. Ball, E. 1998. Slaves in the Family. New York: Farrar, Straus and Giroux. Berry, T. 1999. The Great Work: Our Way Into the Future. New York: Three Rivers Press. Berry, T. 2011. “Rights of the Earth: We Need A New Legal Framework Which Recognizes The Rights of All Living Beings.” In Exploring Wild Law: The Philosophy of Earth Jurisprudence, edited by P. Burdon, 227–229. S. Australia: Wakefield Press.

Ecological jurisprudence beyond Earth 55 Brown, P.G. 2008. “Choosing Ignorance within a Learning Universe.” In The Virtues of Ignorance: Complexity, Sustainability, and the Limits of Knowledge, edited by B. Vitek and W. Jackson, 165–187. Lexington, KY: The University Press of Kentucky. Burdon, P. 2011a. “Eco-Centric Paradigm.” In Exploring Wild Law: The Philosophy of Earth Jurisprudence, edited by P. Burdon, 85–96. S. Australia: Wakefield Press. Burdon, P. 2011b. “The Great Jurisprudence.” In Exploring Wild Law: The Philosophy of Earth Jurisprudence, edited by P. Burdon, 59–75. S. Australia: Wakefield Press. Callicott, J.B. 1986. “Moral Considerability and Extraterrestrial Life.” In Beyond Spaceship Earth: Environmental Ethics and the Solar System, edited by E.C. Hargrove, 227– 259. San Francisco, CA: Sierra Club Books. Callicott, J.B. 2017. “The Conceptual Foundations of the Land Ethic.” In Environmental Ethics: Readings in Theory and Application, 7th ed., edited by L.P. Pojman, P. Pojman and K. McShane, 248–261. Boston, MA: Cengage Learning. Capra, F. 2010. The Tao of Physics: An Exploration of the Parallels between Modern Physics and Eastern Mysticism, 35th ed. Boulder, CO: Shambhala. Catchlove, Joel. 2011. “Place As Inspiration.” In Exploring Wild Law: The Philosophy of Earth Jurisprudence, edited by P. Burdon, 97–103. S. Australia: Wakefield Press. Cronon, W. 1996. “The Trouble with Wilderness; or, Getting Back to the Wrong Nature.” In Uncommon Ground: Rethinking the Human Place in Nature, edited by W. Cronon, 69–90. New York and London: W.W. Norton & Co. Cullinan, C. 2011. Wild Law: A Manifesto for Earth Justice, 2nd ed. White River Jct., VT: Chelsea Green. Dagan, H. 2012. “Pluralism and Perfectionism in Private Law.” Columbia Law Review 112: 1409–1446. Davey, M. 2017. “‘We’ve Left Junk Everywhere:’Why Space Pollution Could Be Our Next Big Problem.” The Guardian, March 25, 2017. www.theguardian.com/science/2017/mar/26/ weve-left-junk-everywhere-why-space-pollution-could-be-humanitys-next-big-problem. Dukeminier, J., J.E. Krier, G. Alexander, M. Schill and L.J. Strahilevitz. 2014. Property, 8th ed. New York: Wolters Kluwer. Fair Housing Act, 42 U.S.C. § 3604 (2012). Freyfogle, E. 2011. “Private Rights in Nature: Two Paradigms.” In Exploring Wild Law: The Philosophy of Earth Jurisprudence, edited by P. Burdon, 270–278. S. Australia: Wakefield Press. Gore, A. 1992. Earth in the Balance: Ecology and the Human Spirit. New York: Houghton Mifflin. Hanton, J.R. and D. Moore. 1993. “Ritual and Recreational Perception and Use at Devils Tower National Monument: An Applied Ethnographic Study.” (March 17, 1993) Unpublished study prepared for the National Park Service pursuant to Cooperative Agreement CA 1268–2–9006 (on file with author): ii, 1, 53. Hursthouse, R. 1999. On Virtue Ethics. Oxford, UK: Oxford University Press. Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970). Klinger, J.M. 2017. Rare Earth Frontiers: From Terrestrial Subsoils to Lunar Landscapes. Ithaca, NY and London, UK: Cornell University Press. Leave No Trace Center for Outdoor Ethics. n.d. “The Leave No Trace Seven Principles.” Accessed January 22, 2020. https://lnt.org/learn/7-principles. Leopold, A. (1949) 2017. “The Land Ethic.” In Environmental Ethics: Readings in Theory and Application, 7th ed., edited by L.P. Pojman, P. Pojman and K. McShane, 237–247. Boston, MA: Cengage Learning. Lewis, J.S. 2015. Asteroid Mining 101: Wealth for the New Space Economy. San Jose, CA: Deep Space Industries, Inc.

56

Reed Elizabeth Loder

Locke, J. (1689) 2015. Two Treatises of Government and A Letter Concerning Toleration, Book II. 110–202. Overland Park, KS: Digireads.com Publishing. Loder, R.E. 2011. “Gratitude and the Environment: Toward Individual and Collective Ecological Virtue.” Journal Jurisprudence 10: 383–435. Mackenzie, A.F.D. 2010. “A Common Claim: Community Land Ownership in the Outer Hebrides, Scotland.” International Journal of the Commons 4: 319–344. Margulis, L. 1998. Symbiotic Planet (A New Look at Evolution). Amherst, MA: Basic Books (Perseus). McCarthy, M. 2015. The Moth Snowstorm: Nature and Joy. New York: New York Review of Books. Merchant, B. 2013. “The Problem with Asteroid Mining.” Vice Motherboard Blog, January 23, 2013. https://motherboard.vice.com/en_us/article/d77jj7/the-problem-with-asteroid-mining. Milligan, T. 2015a. “Asteroid Mining, Integrity and Containment.” In Commercial Space Exploration: Ethics, Policy and Governance, edited by J. Galliot, 123–134. Surrey, England and Burlington, VT: Ashgate Publishing. Milligan, T. 2015b. “Fear of Freedom: The Legacy of Arendt and Ballard’s Space Skepticism.” In The Meaning of Liberty Beyond Earth, edited by C.S. Cockell, 33–46. London and New York: Springer. Milligan, T. 2015c. Nobody Owns the Moon: The Ethics of Space Exploration. Jefferson, NC: McFarland Publishing. Momaday, N.S. 1998. “The Way to Rainy Mountain.” In Native North American Literary Companion, edited by J. Bruchac, 325–334. Detroit, MI: Visible Ink Press. Moore, T. 1996. “Ecology: Sacred Homemaking.” In The Soul of Nature: Celebrating the Spirit of the Earth, edited by M. Tobias and G. Cowan, 1371–1344. New York: Plume (Penguin). NASA SCIENCE. n.d. “Asteroids.” Solar System Exploration. Accessed January 22, 2020 https://solarsystem.nasa.gov/planets/asteroids. Oduntan, Ghenga. 2015. “Who Owns Space? US Asteroid-Mining Act Is Dangerous and Potentially Illegal.” The Conversation, November 25, 2015. http://theconversation.com/ who-owns-space-us-asteroid-mining-act-is-dangerous-and-potentially-illegal-51073. Olson, V.A. 2012. “Political Ecology in the Extreme: Asteroid Activism and the Making of an Environmental Solar System.” Anthropological Quarterly 85, no. 4: 1027–1044. Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 129, 132, 138 (1978). Regan, T. (1985) 2017. “The Radical Egalitarian Case for Animal Rights.” In Environmental Ethics: Readings in Theory and Application, 7th ed., edited by L.P. Pojman, P. Pojman and K. McShane, 106–114. Boston, MA: Cengage Learning. Riederer, R. 2014. “Silicon Valley Says Space Mining Is Awesome and Will Change Life on Earth. That’s Only Half Right.” The New Republic, May 19, 2014. https://newrepublic. com/article/117815/space-mining-will-not-solve-earths-conflict-over-natural-resources. Rolston, III, Holmes. 1986. “The Preservation of Natural Value in the Solar System.” In Beyond Spaceship Earth: Environmental Ethics and the Solar System, edited by E.C. Hargrove, 140–182. San Francisco, CA: Sierra Club Books. Rolston, III, Holmes. 2017. “Naturalizing Values: Organisms and Species.” In Environmental Ethics: Readings in Theory and Application, 7th ed., edited by L.P. Pojman, P. Pojman and K. McShane, 130–143. Boston, MA: Cengage Learning. Roth, S. 2016. “Developing a Law of Asteroids: Constants, Variables, and Alternative.” Columbia Journal of Transnational Law 54: 827–872. Routley, R. 1973. “Is There a Need for a New, An Environmental, Ethic?” Proceedings of the XVth World Congress of Philosophy: 17th to 22nd Sept. 1973. Varna, Bulgaria: Sofia Press.

Ecological jurisprudence beyond Earth 57 Schweitzer, A. 2017. “Reverence for Life.” In Environmental Ethics: Readings in Theory and Application, 7th ed., edited by L.P. Pojman, P. Pojman and K. McShane, 169–176. Boston, MA: Cengage Learning. Singer, P. 2017a. “Rich and Poor.” In Ethics Across the Professions: A Reader for Professional Ethics, 2nd ed., edited by C. Martin, W. Vaught and R.C. Solomon, 382–385. Oxford, UK and New York: Oxford Univ. Press. Singer, P. 2017b. “A Utilitarian Defense of Animal Liberation.” In Environmental Ethics: Readings in Theory and Application, 7th ed., edited by L.P. Pojman, P. Pojman and K. McShane, 96–105. Boston, MA: Cengage Learning. Sparrow, R. 2015. “Terraforming, Vandalism and Virtue Ethics.” In Commercial Space Exploration: Ethics, Policy and Governance, edited by J. Galliot, 161–178. Surrey, England and Burlington, VT: Ashgate Publishing. State v. Shack, 217 A. 2d 369 (N.J. 1971). Stone, C. 1972. “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” Southern California Law Review 45: 450–501. Swimme, B. and T. Berry. 1992. The Universe Story: From the Primordial Flaring Forth to the Ecozoic Era—A Celebration of the Unfolding of the Cosmos. New York: Harper One. Taylor, P. 2017. “Biocentric Egalitarianism.” In Environmental Ethics: Readings in Theory and Application, 7th ed., edited by L.P. Pojman, P. Pojman and K. McShane, 177–192. Boston, MA: Cengage Learning. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. October 10. 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205. Turk, V. 2015. “The US Says Asteroid Mining is Legal for Americans. What about Everyone Else?” Vice Motherboard Blog, December 1, 2015. https://motherboard.vice.com/en_us/article/ ezp4yk/the-us-says-asteroid-mining-is-legal-for-americans-what-about-everyone-else. Tyson, N.dG., M.A. Strauss and J.R. Gott. 2016. Welcome to the Universe: An Astrophysical Tour. Princeton, NJ: Princeton Univ. Press, U.S. Commercial Space Launch Competitiveness Act of 2015 [Space Act of 2015], Pub. L. No. 114–90 (codified at 51 U.S.C. §§ 51301–51303 (Supp. III 2015)). Valentine, D. 2012. “Exit Strategy: Profit, Cosmology, and the Future of Humans in Space.” 85 Anthropological Quarterly 85: 1045–1068. Warren, K. 2017. “The Power and Promise of Ecological Feminism.” In Environmental Ethics: Readings in Theory and Application, 7th ed., edited by L.P. Pojman, P. Pojman and K. McShane, 389–405. Boston, MA: Cengage Learning. “Why is Asteroid Mining an Exciting Proposition?” 2019. Astronomy Source: Discover the Universe, September 22, 2019. www.astronomysource.com/tag/rare-earth-metalsfrom-asteroids/. Wightman, A., R. Callander and G. Boyd. 2003. “Common Land in Scotland.” Securing the Commons no. 8, December 2003. www.andywightman.com/docs/secur_comm8.pdf.

Part 3

Solutions in ecological law

4

Ecological law in the Anthropocene1 Olivia Woolley

Introduction Consideration is currently being given to a formal definition of the Anthropocene as a unit within the geologic time scale in view of extensive human alteration of the Earth (International Commission on Stratigraphy 2019). “Anthropocene” is also used in several academic disciplines as a noun or adjective to signify that humans have become a force of change at the planetary scale (Castree 2014; Lövbrand et al. 2015). This chapter adds to literature in legal scholarship using this second broader meaning (Kim and Bosselmann 2013; Kotzé 2014; Kotzé and French 2018). It does so by looking at what the extension of anthropogenic influence on the Earth and its subsystems means for ecological law. The chapter considers this question by exploring whether, and, if so, how the Anthropocene’s advent has affected the ability of humans to prevent their activities from having negative ecological effects by applying legal controls to them. The second section argues that key aspects of the relationship between humans and ecosystems with regard to regulation have not changed. First, significant gaps remain in knowledge and understanding of ecosystem functionality, of how activities affect ecosystems, of how vulnerable they are to undergoing change and of whether they are resilient enough to withstand future challenges. The gaps may be narrowed by scientific progress but cannot be filled due to the complexity, non-linearity and dynamism of ecosystems and of the Earth system and socioeconomic systems with which they interact. They prevent effective ecological regulation by reliance on knowledge and prediction of the extent to which human activities are already exposing and may in the future expose ecosystems to risk of change in their existing structures and functions. Second, humans may not know how an ecosystem will respond to disturbance but do have knowledge from a number of sources which may indicate that an ecosystem is at risk of collapse. The relevant bodies of knowledge offer rare patches of solid ground in a sea of uncertainty. Policymakers concerned with preserving ecosystems should therefore respond to them, and particularly as further “warnings” indicating a growing risk may not be forthcoming before the failure of affected ecosystems becomes inevitable.

62

Olivia Woolley

Third, there is a requirement to move away from regulatory approaches which depend on accurate prediction of ecological effects and knowledge of the vulnerability of affected ecosystems to make finely balanced judgments on whether an activity is likely to be tolerable. They are not effective as a first-line response to anthropogenic ecological problems as they do not recognize the gap in knowledge and understanding at the heart of the human/ecosystem relationship. However, this is the approach which much current law aimed at ecosystem preservation employs. An alternative regulatory approach is proposed. It replaces reliance on the prediction of outcomes with laws that privilege and require a response to actual knowledge indicating that ecosystems may have become exposed to risk of collapse. Such warning signs trigger duties to bolster the resilience of the ecosystem concerned, including by reducing anthropogenic pressures and taking restorative steps. Action should be taken as a matter of urgency in view both of the catastrophic consequences that an ecosystem’s collapse has for species dependent on its functioning even if risks of this happening are small, and of an inability to discount, due to non-linearity, that the risk of failure of an ecosystem for which a warning sign has been given could already be substantial. The third section identifies two ways of relevance to regulation in which the human/ecosystem relationship has been changed by the extension of human influence on the Earth system level. First, there has been a widening of the gap lying between human knowledge and understanding of ecosystems and of their response to disturbance due to the fact that human-driven change in ecosystems is now caused not only by direct disturbance but also by change in the Earth system and its components, such as the climate system with which all ecosystems interact. Second, the Anthropocene has seen significant growth in bodies of knowledge which would be viewed as indicating under the alternative regulatory approach that ecosystem functionality may be at risk. The knowledge derives from comparison of human-driven change in climate, ocean chemistry and biodiversity with past episodes of alteration in planetary conditions for which we have knowledge of ecological effects as well as from evidence of negative ecological impacts that the change currently being experienced is already having. The section considers what these two impacts of the Anthropocene mean for ecological law. It argues that they underline the need for a new approach to ecological regulation of the type proposed in the second section. In addition, knowledge indicating that all ecosystems may have been placed at risk by planetary change elevates the problem of ecological deterioration to the global level. In doing so, it necessitates international commitments by states to collaborate on tackling the collective ecological threat that confronts them if this is to be addressed effectively. I suggest that this should involve interstate cooperation on worldwide transition of socioeconomic systems away from unsustainable practices while working together on developing more sustainable ways of living that incorporate restoration of ecosystem resilience as a valued activity in economic models. Ecological law is understood for the purposes of this chapter as encompassing laws aimed at achieving goals that contribute to preserving and restoring the capacity of ecosystems to support life. It includes laws concerned with the

Ecological law in the Anthropocene 63 conservation of components of ecosystems, including species and their habitats, and of ecosystems as a whole as well as those which regulate activities that may impact on the functioning of ecosystems in some respect. It also includes laws concerned with planetary systems and activities affecting them (e.g. the impact of greenhouse gas emissions on the climate system) as change in planetary conditions contributes significantly, alongside excessive human exploitation, to ecosystem deterioration. Ecological law may be a very broad category under this definition, but its breadth reflects the fact that systemic outcomes derive from the interaction of all living components of ecosystems with their non-living environments and external conditions as affected by the combined impact from human and natural sources of disturbance acting on them.

The unchanged human/ecosystem relationship The term “Anthropocene” denotes that humans have become a driver of planetary change, but this fact does not tell us how to respond to the new situation through ecological law. One of the roles of ecological law is to moderate the relationship between humans and ecosystems in order to achieve a desired outcome such as the continuity of an ecosystem’s capacity to yield “services” from which humans benefit (Keiter 1998; Woolley 2014). The key question therefore is how the Anthropocene has changed this relationship in ways affecting human ability to achieve ecological goals through law. Answering it requires reflection both on the human/ecosystem relationship’s fundamental characteristics and on how, if at all, they have been altered by humanity’s planetary influence. This line of thought reveals that ignorance of ecological conditions and of how anthropogenic disturbance affects them, a constant characteristic of the relationship throughout the presence of humans on the Earth, has not changed. Much has been learned from millennia of direct experience about how excess exploitation can lead to the decline of valued outputs (Ponting 1991; Bosselmann 2017, 8–54). The emergence and development in the twentieth century of ecology as a natural science discipline has seen significant growth in understanding of ecosystems, of how relationships between their components give rise to systemic outcomes and of how change in the resulting systems affects their components (Worster 1995; Gaichas 2008). Even so, establishing the ecological effects of human activities with any accuracy remains problematic. Human and natural impacts on individual ecosystem components combine to have a cumulative effect on the system. The fact that individual impacts take effect, not directly but in combination with many others, makes it hard to link them with or predict systemic outcomes (Woolley 2014, 21–23; Young 2001, 1–10, 46–59). The nature of ecosystems as complex adaptive systems adds to the difficulty of predicting how activities will affect them (Levin 1998, 431–432; Harris 2007, 19–27). Ecosystems are non-linear, meaning that outcomes are not proportionate to inputs and may occur long after the events giving rise to them (Levin 1998, 433; Harris 2007, 22; Walker and Salt 2006, 34–36). They are also dynamic, meaning that snapshots of ecological conditions and assessments of

64

Olivia Woolley

activities as being ecologically tolerable become obsolete as benchmarks against which precise statements can be made. We know that ecosystems possess resilience, a property which enables them to retain their structures and functions in the face of disturbance (Woolley 2014, 27–37; Gunderson 2000). However, the complexity of interaction between living and non-living elements giving rise to systemic outcomes precludes exact knowledge of what contributes to resilience, of how resilient a system is at a point in time, of tipping points at which an ecosystem may be vulnerable to undergoing radical change and of how close the system is to a tipping point. In addition, the impossibility of knowing the scale of future challenges that ecosystems may encounter and therefore of whether they are resilient enough to maintain structure and function in the face of disturbance would preclude such judgments even if the cumulative ecological effects of human activities in the present could be known with any accuracy (Woolley 2014, 31–32; Holling and Gunderson 2002, 32). The dynamism of ecosystems and of systems with which they interact call into question judgments that an activity is ecologically tolerable which do not take into account this temporal dimension. Ecosystems do not disappear when disturbance overwhelms their resilience. They undergo a shift to a new regime with a structure and functions that differ from those of the preceding regime (Woolley 2014, 22–23; Walker and Salt 2012, 4–9; Chapin III et al. 2011, 433–436). Resulting systems often have much reduced capacities to support a diversity of species and to provide humans and other species with “services” that are essential for their well-being (Folke 2006, 257; Biggs et al. 2018). A consequence of the non-linearity of ecosystems is that they may not themselves behave in ways indicating that a risk of collapse has arisen before a regime shift occurs (Hastings and Wystrom 2010; Scheffer et al. 2015). Indeed, shifts have been known to become apparent only some years after having become unavoidable (Hawkins Bohn and Doncaster 2015, R667; Sguotti and Cormon 2018). This presents a particular challenge for regulation whether by reference to prediction of ecological effects or of an ecosystem’s likely evolution. Warning signs The factors outlined earlier make regulation of human activities by reference to knowledge and understanding of their ecological effects problematic. However, this does not mean that information enabling decision-making on whether intervention is required to preserve ecosystem functionality is completely lacking. A second circumstance which passage from the Holocene to the Anthropocene has not changed is that information on how some aspects of ecological and planetary conditions are evolving is available. Such information, although it would not support accurate assessment of how exposed an ecosystem is to collapse, does indicate that circumstances have arisen in which an ecosystem may have been placed at risk of failure. This may be because the information suggests that the resilience of ecosystems has already been significantly impaired and hence that they are vulnerable to lower levels of disturbance than would be the case if they were more

Ecological law in the Anthropocene 65 robust; or that the magnitude of disturbance is rising to levels which ecosystems could find overwhelming, even if they are highly resilient; or both, as is increasingly the case in the Anthropocene. Factors identified in ecological literature as potential indicators of risk suggest three categories of such knowledge. First, a substantial body of theoretical literature in ecology uses a general understanding of how ecosystems function and case studies to argue that certain types of deterioration evidence that an ecosystem may have become vulnerable to collapse (Keith et al. 2013; Bland et al. 2017). For example, the IUCN’s Red List for Ecosystems project draws from this literature to propose four indicators of emerging risk, these being decline: in spatial occurrences of an ecosystem type; in an ecosystem’s geographical distribution; of an ecosystem’s abiotic environment; and of its characteristic biota (Keith et al. 2015; Bland et al. 2017, International Union for Conservation of Nature 2019). The indicators are used as a basis for assessing whether ecosystems may be exposed to risk of undergoing a regime shift. Second, commentators in ecological science argue that the more diversity exists between species and within them in an ecosystem, the more resilient the ecosystem supporting this biodiversity is likely to be (Folke 2006, 253; Oliver et al. 2015). One reason for this is that a highly diverse system is more likely to harbor species capable of performing key functions that are able to cope with changing conditions even if others performing the same function are unable to cope and are lost. Evidence that biodiversity is in decline in an ecosystem may be viewed as consistent with growing vulnerability to disturbance (Barnard et al. 2012; Oliver et al. 2015). Third, knowledge of how the Earth and its ecosystems have responded to past change in planetary conditions allows conjecture about risks posed for ecosystem functionality by change currently being experienced (Steffen et al. 2004). Relevant considerations include the comparative scales and rates of change. Change in systems with which all ecosystems interact such as the Earth’s climate system may provide grounds for generic concern over their ability to withstand disruption of conditions to which they are adapted, and particularly where current change is found to be equivalent to past episodes which had negative ecological effects or to exceed them. The value of information falling into the aforementioned categories is that it offers warning signs that ecosystems’ ability to retain current structures and functions may be under threat. Those with policies aimed at preserving existing ecological capacities to support life should heed and respond to them if their commitments were made seriously. To do otherwise would be to ignore the only evidence that may become available to them that an ecosystem could be at risk of collapse in view of challenges with predicting ecological effects, and, indeed, with knowing whether or not a regime shift is imminent or has already occurred. Reappraising ecological law Prediction-dependent regulation is not effective for preventing ecological harm. The significant gaps in knowledge and understanding examined earlier prevent

66

Olivia Woolley

precise judgments about the ecological tolerability of activities and actions under consideration. In any event, the dynamism of ecosystems and of the Earth system and socio-economic systems with which they interact raises questions about decisions based on knowledge of ecological conditions at a point in time, and particularly during a period of volatility in all of the systems concerned. It is surprising therefore that regulation based on the prediction of likely ecological effects remains a frontline component of efforts to protect ecosystems. Procedural environmental assessment laws assume that a proposal’s anticipated environmental effects can be predicted reliably, thereby enabling relevant authorities to make decisions with knowledge of their likely environmental consequences (Morgan 2012). For example, the EU’s Environmental Impact Assessment Directive, while it does not refer to ecosystems expressly, requires that each assessment should identify, describe and assess the direct and indirect significant effects of a project on biodiversity and its abiotic environment as well as on the interaction between them (European Union 2011, Art. 3(1)). They should cover not only direct effects of a project, but also its indirect, secondary and cumulative impacts (European Union 2011, Annex IV, para 5). Laws that place substantive requirements on actors to keep the cumulative effects of activities within the carrying capacity of ecosystems also assume that the knowledge is or will become available to make that possible. For example, the Marine Strategy Framework Directive aims at achieving good environmental status in the European Union’s marine waters, a state of affairs in which “the structure, functions and processes of the constituent ecosystems” allow them “to function fully and maintain their resilience to human-induced environmental change” (European Union 2008, arts 1 and 3(5)). This is to be achieved by developing regulatory strategies based on an intensive program of knowledge gathering about the condition of ecosystems and how sea uses are affecting them, an approach which I have argued elsewhere does not take into account sufficiently the gaps in knowledge and understanding noted earlier (Woolley 2015). I am not suggesting that these types of law should not be used in ecological regulation. As we have seen when discussing warning signs, relevant knowledge is of immense value for detecting when intervention to protect ecosystems is needed, and its acquisition should be promoted (Woolley 2014, 215–233). With regard to substantive requirements of the type mentioned previously, preventing the cumulative effects of human activities from exceeding ecologically tolerable bounds is central to ecological law. However, the acquisition and use of knowledge must take place within a substantive legal context which recognizes that much about the condition of ecosystems is unknown or unknowable and which grapples with this fact when determining appropriate responses to risks of their collapse. How then should a regulatory approach that does recognize ignorance and dynamism be configured? The precautionary principle could assist with answering the question of whether this is a situation in which action should be taken despite scientific uncertainty, and, if so, what should be done. There are many variants of the principle, but some common features can be identified, including direction that a lack of scientific certainty does not justify inaction (Wiener 2007, 602–605;

Ecological law in the Anthropocene 67 Pyhälä 2010, 211–213; Wiener 2016, 165–169). I argue elsewhere, drawing on academic scholarship on decision-making under scientific uncertainty and on the knowledge outlined earlier, that a precautionary analysis would lend strong support for urgent global action to support ecosystem functionality (Woolley 2019). However, the precautionary principle cannot be relied upon as a basis for developing laws that are consistent with the reality of the human/ecosystem relationship and are therefore suited to controlling human activities from an ecological perspective. A good argument can be made in the view of Sands et al. that the basic formulation of the principle in the 1992 Rio Declaration has become part of customary international law (United Nations General Assembly 1992, Principle 15; Sands and Peel 2018, 237–240), but this does not offer guidance on how parties should act in uncertain situations (Dovers and Handmer 1995; Pyhälä 2010, 213–221). To what extent should activities be constrained when full knowledge about their consequences is lacking? In addition, the principle is conceived of as a departure from a default position of decision-making made with the benefit of full scientific certainty (Pyhälä 2010, 204–205; de Sadeleer 2010, 186–187). The reverse is true in the human/ecosystem relationship. A focus on the reality of the human/ecosystem relationship offers a good starting point for finding a suitable alternative regulatory approach. Humans lack exact knowledge of the extent to which their actions have left an ecosystem vulnerable to deterioration and failure and, by the same token, of whether or not proposed activities are likely to be ecologically tolerable. Ecologists regard certain types of information as indicators that affected ecosystems may have entered a “red zone” of exposure to significant risk of decline and deterioration (“warning signs”). A warning sign does not reveal the degree of risk to which an ecosystem is exposed, but this lack of information should not be viewed as justifying delay. Rather, it should be heeded as notice of a potentially serious threat of collapse which may not be repeated before this occurs in view of ecosystem non-linearity. Bearing these considerations in mind, regulation that corresponds to the reality of the human/ecosystem relationship should possess two attributes. First, it should privilege knowledge of the type considered in the section on warning signs as a basis for regulation of projects, plans and policies. Second, it should require regulated actors to respond to a warning sign by alleviating factors that may erode an ecosystem’s resilience while simultaneously taking positive action to restore resilience if feasible. In effect, a warning sign is the Earth’s signal to humans that an affected ecosystem should be placed in the recovery position.

Changes to the human ecosystem relationship in the Anthropocene The Anthropocene has brought two important changes to the human/ecosystem relationship. First, the fact that human activities are altering even more complex and less-well-understood planetary systems adds new layers of difficulty with predicting ecosystem behavior. Subsystems of the Earth system such as climate are also dynamic, non-linear and prone to crossing thresholds and entering new regimes without immediate evidence becoming available that a fundamental shift

68

Olivia Woolley

has occurred (Boardman 2010, 38–42; Steffen et al. 2004, 6–9). Change in them can have significant negative impacts on ecosystems adapted to function within well-established parameters such as minimum and maximum temperatures and rates of temperature change (Montoya and Raffaelli 2010; Scheffers et al. 2016). For example, the Intergovernmental Panel on Climate Change’s report on Climate Change and Land of 2019 advises that [i]t is very likely that terrestrial ecosystem and land processes will be exposed to disturbances beyond the range of current natural variability as a result of global warming, even under low to medium range warming scenarios, and these disturbances will alter the structure, composition and functioning of the system. (Jia and Shevliakova 2019) The effect of altered conditions on ecosystem components may impair an ecosystem’s functioning and resilience. At the same time, it may, if it is of sufficient magnitude, cause a regime shift by overwhelming the ecosystem’s resilience. Change in ecosystems may impact on planetary systems in turn due to relationships between them such as the role of natural greenhouse gas sinks in the climate system’s functioning (Lenton 2016, 27–37, 84–87; Steffen et al. 2004, 6–9). In view of these extremely complex interrelationships, the unprecedented rate and degree of change in climatic conditions currently being experienced adds significantly to problems with predicting the extent and timing of ecological effects. Second, knowledge amounting to warning signs of ecological risk has grown dramatically since humans became responsible for altering the Earth as a whole. Most notably, information abounds in the previously unpopulated category of evidence that ecologically hazardous planetary change is occurring. With regard to climate change, studies of past episodes reveal that the warming experienced to date due to climate change is not unprecedented, but that the rate at which it is occurring is (Steffen et al. 2016). The IPCC’s 2014 climate assessment advises that “[w]arming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia” (Pachauri and Meyer 2014, 2). Current concentrations of carbon dioxide, methane and nitrous oxide are “unprecedented in at least the last 800,000 years” (Pachauri and Meyer 2014, 4). It goes on to observe that future ecological risk is high as “natural global climate change at rates lower than current anthropogenic climate change caused significant ecosystem shifts and species extinctions during the past millions of years” (Pachauri and Meyer 2014, 13, 51, 67). Brierley and Kingsford note that impacts of unprecedently rapid warming “on marine organisms and ecosystems are likely also to be unprecedented” (Brierley and Kingsford 2009). They expressed concern in 2009 that marine ecosystems, even if their resilience is “very great indeed,” would struggle to retain structures and functions in the face of global warming to which the Earth was already committed by greenhouse gas emissions (Brierley and Kingsford 2009, R607).

Ecological law in the Anthropocene 69 Dramatic change affecting all of the world’s marine ecosystems can also be found with ocean acidification, an effect of greenhouse gas growth in addition to global warming which is due to the solubility of carbon dioxide in salt water and lowers the alkalinity of the marine environment (Rockström 2009a). A report of 2013 by the International Geosphere-Biosphere Programme advises that acidity of the oceans has increased by 26% since pre-industrial times and that it is growing ten times faster than at any time in the last 55 million years (IGBP 2013). The geological record evidences that acidification events which contributed to significantly negative impacts on marine species including extinction have occurred previously, but over a much longer timescale and at slower rates than at present (Andersson et al. 2015). Andersson and his colleagues conclude that its unprecedented nature “suggests that the current acidification event may have more severe outcomes than perturbations observed in the geological record.” Similarly, Hönisch and his colleagues advise that “the current rate of CO2 release stands out as capable of driving” a potentially unparalleled “combination and magnitude of ocean geochemical changes,” and thereby of creating “the possibility that we are entering an unknown territory of marine ecosystem change” (Hönisch et al. 2012, 1062). The loss of biodiversity will vary from ecosystem to ecosystem, but it is arguable that this has reached a total rate and scale where it too can be regarded as a planetary-scale phenomenon (Rockström et al. 2009b). The deterioration currently being experienced in biodiversity has been likened to the Earth’s sixth great extinction event following on from others caused by non-anthropogenic planetary upheaval (Ceballos et al. 2015). It raises concern over the Earth’s ecological capacity to support life in view of the central contribution of biodiversity to ecosystem resilience mentioned earlier, and would do so even if the claim that biodiversity loss should be regarded as a planet-altering phenomenon is not accepted (Barnard et al. 2012; Montoya and Raffaelli 2010). The climate change currently being experienced would on its own constitute an actionable warning sign that ecosystems may be at risk of long-term harm under the alternative regulatory approach proposed earlier. Ocean acidification and biodiversity would reinforce this conclusion and could also support an argument in themselves that planetary-level change leaves all ecosystems exposed to risk of permanent decline. The fact that these planetary changes are occurring at a time when many of the world’s ecosystems have already been made vulnerable to disturbance by human overexploitation and related loss in biodiversity adds to the case for arguing that risk of ecosystem failure has become endemic (Millennium Ecosystem Assessment 2005; World Wildlife Fund 2018). The principal consequence of this situation becomes apparent when we think about it in terms of the human/ecosystem relationship described in the second section of this chapter. No basis remains following these global warning signs, and particularly when combined with those for individual systems, for confidence that ecosystems are able to support continued human exploitation of them at current levels without being driven to collapse. In such circumstances, the role of law concerned with preserving ecosystem functionality should be to require an urgent worldwide response to an existential threat for species at large rather than to try and keep the individual

70

Olivia Woolley

and cumulative effects of human activities within ecologically tolerable bounds, there being no basis for confidence when the reality of the human/ecosystem relationship is considered that they have not already been exceeded.

What does the Anthropocene mean for ecological law? New approaches to ecological regulation are required irrespective of human influence on the Earth system for reasons discussed in the second section of this chapter. How, if at all, should the regulatory proposal made in that section be altered to address Anthropocene changes in the human/ecosystem relationship? The fact that humans are altering the Earth system in ways that are known to have had serious ecological impacts planetarily in the past would trigger requirements for ecological regulation everywhere in itself on the basis outlined in the alternative regulatory approach. In addition, it would necessitate a common response by all of the world’s States at the international level to risks of collapse presented by Earth system change for ecosystems individually and collectively. Commonality is needed because any actions adding to drivers of Earth system change compound warning signs that would already be viewed as actionable under the new regulatory approach. This should involve treaty commitments by States to tackle drivers of the Earth system change at a rate commensurate with the goal of ecosystem preservation; and, as part of this, to preserve and restore ecosystems whose deterioration would lead to an acceleration of Earth system change (Woolley 2019). Many of the biosphere’s ecosystems contribute to keeping planetary change in check to some extent due to the carbon regulation service provided by biomassdominated ecosystems, particularly forests, by soil, and by ocean biomass (Lenton 2016, 29 and 85–87; Redgwell 2012, 132–133; Smith 2008). The functioning of all ecosystems is central to combating global decline in biological diversity if this can be regarded as an instance of planetary change. In addition, a strong argument can be made that such an instrument should include general duties to relieve ecological stresses in ecosystems and for restoration of their resilience as doing so supports ecosystem function in the face of Earth system change (Woolley 2019). Conversely, a parallel decline in resilience due to excessive exploitation makes it more likely that Earth system change will have negative ecological effects and that these will occur more quickly. When considered in terms of the real human/ecosystem relationship examined in the second section of this chapter, the threat posed by the cumulative effects of humans living in centuries past, accelerating in the last eight decades, has reversed the relationship’s polarity. The default position formerly was that humans had no reason to believe that ecological bounds may have been exceeded unless warning signs for individual ecosystems suggested otherwise. They are now confronted by overwhelming evidence that their actions have placed ecosystems everywhere at risk of decline and deterioration. An effect of this reversed polarity is to require an extension of ecological law’s range so that, in addition to ecological regulation of activities, this is concerned with facilitating socio-economic transition away from practices that have led to the global overshoot with a view to maximizing

Ecological law in the Anthropocene 71 ecosystems and their living components’ prospects of survival in hostile conditions. Addressing inequity due to this shift in focus for peoples whose opportunities to improve living standards have been constrained by the excessive behavior of others must also be a core aspect of ecological law now that its main concern is with restoration of ecosystem resilience rather than with attempting to strike an “optimal” balance between the pursuit of socio-economic goals and environmental functioning. Programs of stress reduction and restoration should be implemented as a matter of urgency due to a combination of warning signs at the planetary level, each one of which would be concerning on its own, from climate change, ocean acidification and massive decline in biological diversity to their coincidence with rapid and accelerating deterioration in the conditions of ecosystems worldwide.

Conclusion Humans have blundered into a situation of worldwide threat to their ecosystem support base. The gaps in knowledge and understanding examined in the chapter’s second section have contributed to this unfortunate situation. Alternative regulatory approaches are required to prevent human activities from further undermining ecosystem functionality despite ignorance over their cumulative effects. The Anthropocene highlights the urgent need to introduce effective ecological regulation. It also makes it necessary that this should happen not only at the ecosystem level, which would have sufficed historically, but at the international level due to impacts from Earth system change adding to those caused by direct exploitation. The development of detailed proposals for an international instrument for ecosystem preservation and for implementing laws at multiple levels should be a future focus for legal research concerned with formulating responses in law to the global ecological crisis.

Note 1 Author’s note: I am grateful to Peter D. Burdon and Michelle Maloney for their helpful comments on the draft chapter.

References Andersson, A.J., D.I. Kline, P.J. Edmunds, S.D. Archer, N. Bednaršek, R.C. Carpenter, M. Chadsey, P. Goldstein, A.G. Grottoli, T.P. Hurst, A.L. King, J.E. Kübler, I.B. Kuffner, K.R.M. Mackey, B.A. Menge, A. Paytan, U. Riebesell, A. Schnetzer, M.E. Warner and R.C. Zimmerman. 2015. “Understanding Ocean Acidification Impacts on Organismal to Ecological Scales.” Oceanography 28, no. 2: 16–27. Barnard, C., C. Bertelsmeier, P. Leadley, W. Thuiller and F. Courchamp. 2012. “Impacts of Climate Change on the Future of Biodiversity.” Ecology Letters 12: 365–377. Biggs, R., G.D. Peterson and J.C. Rocha. 2018. “The Regime Shifts Database: A Framework for Analyzing Regime Shifts in Social-Ecological Systems.” Ecology and Society 23, no. 3: 9. https://doi.org/10.5751/ES-10264-230309.

72

Olivia Woolley

Bland, L.M., D.A. Keith, R.M. Miller, N.J. Murray and J.P. Rodríguez, eds. 2017. Guidelines for the Application of IUCN Red List of Ecosystems Categories and Criteria. Gland: IUCN Version 1.1. https://portals.iucn.org/library/node/45794 Boardman, R. 2010. Governance of Earth Systems: Science and Its Uses. Basingstoke: Palgrave Macmillan. Bosselmann, K. 2017. The Principle of Sustainability: Transforming Law and Governance, 2nd ed. Abingdon, Oxon: Routledge. Brierley, A.S. and M.J. Kingsford. 2009. “Impacts of Climate Change on Marine Organisms and Ecosystems.” Current Biology 19, no. 14: R602–614. Castree, N. 2014. “The Anthropocene and the Environmental Humanities: Extending the Conversation.” Environmental Humanities 5, no. 1: 233–260. Ceballos, G., P.R. Ehrlich, A.D. Barnosky, A. Garcia, R.M. Pringl and T.M. Palmer. 2015. “Accelerated Modern Human-Induced Species Losses: Entering the Sixth Mass Extinction.” Science Advances 1, no. 5: e1400253. Chapin III, F.S., P.A. Matson and P.M. Vitousek. 2011. Principles of Terrestrial Ecosystem Ecology, 2nd ed. New York: Springer-Verlag. de Sadeleer, N. 2010. “The Principles of Prevention and Precaution.” In Research Handbook on International Environmental Law, edited by M. Fitzmaurice, D.M. Ong and P. Merkouris, 182–200. Cheltenham: Edward Elgar. Dovers, S. and J.W. Handmer. 1995. “Ignorance, the Precautionary Principle and Sustainability.” Ambio 24, no. 2: 92–97. European Union. 2008. Directive 2008/56/EC of 17/6/2008 establishing a framework for community action in the field of marine environmental policy [2008] OJ L 164, 25.6.2008, 19–40. European Union. 2011. Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment of 13/12/2011 as amended by Directive 2014/52/EU of 16/4/2014. https://ec.europa.eu/environment/eia/pdf/EIA_ Directive_informal.pdf. Folke, C. 2006. “Resilience: The Emergence of a Perspective for Social-Ecological Systems Analyses.” Global Environmental Change 16, no. 3: 253–267. Gaichas, S.K. 2008. “A Context for Ecosystem-based Fishery Management: Developing Concepts of Ecosystems and Sustainability.” Marine Policy 32: 393–401. Gunderson, L.H. 2000. “Ecological Resilience—In Theory and Application.” Annual Review of Ecology and Systematics 31: 425–439. Harris, G. 2007. Seeking Sustainability in an Age of Complexity. Cambridge: Cambridge University Press. Hastings, A. and D.B. Wystrom. 2010. “Regime Shifts in Ecological Systems Can Occur with No Warning.” Ecological Letters 13, no. 4: 464–472. Hawkins, S.J., C. Bohn and C.P. Doncaster. 2015. “Ecosystems: The Rocky Road to Regime Shift Indicators.” Current Biology 25, no. 15: R666–R669. Hönisch B., A. Ridgwell, D.N. Schmidt, E. Thomas, S.J. Gibbs, A. Sluijs, R. Zeebe, L. Kump, R.C. Martindale, S.E. Greene, W. Kiessling, J. Ries, J.C. Zachos, D.L. Royer, S. Barker, T.M. Marchitto Jr., R. Moyer, C. Pelejero, P. Ziveri, G.L. Foster and B. Williams. 2012. “The Geological Record of Ocean Acidification.” Science 335, no. 6072: 1058–1063. Holling, C.S. and L.H. Gunderson. 2002. “Resilience and Adaptive Cycles.” In Panarchy: Understanding Transformations in Human and Natural Systems, edited by C.S. Holling and L.H. Gunderson, 25–62. Washington, DC: Island Press. International Commission on Stratigraphy. 2019. “The Subcommission on Quaternary Stratigraphy, ‘Working Group on the Anthropocene.’” Accessed November 2, 2019. http://quaternary.stratigraphy.org/working-groups/anthropocene/.

Ecological law in the Anthropocene 73 The International Geosphere-Biosphere Programme, the International Oceanographic Commission and the Scientific Commission on Oceanic Research. 2013. Ocean Acidification Summary for Policymakers—Third Symposium on the Ocean in a HighCO2 World. Stockholm: International Geosphere-Biosphere Programme. www.igbp.net/ download/18.30566fc6142425d6c91140a/1385975160621/OA_spm2-FULL-lorez.pdf. International Union for Conservation of Nature. 2019. “Red List of Ecosystems.” www. iucnrle.org/. Jia, G. and E. Shevliakova. 2019. “Land Climate Interactions.” In Climate Change and Land: IPCC Special Report on Climate Change, Desertification, Land Degradation, Sustainable Land Management, Food Security and Greenhouse Gas Fluxes in Terrestrial Ecosystems, Intergovernmental Panel on Climate Change. www.ipcc.ch/report/ srccl/. Keiter, R.B. 1998. “Ecosystems and the Law: Toward an Integrated Approach.” Ecological Applications 8, no. 2: 332–341. Keith, D.A., J.P. Rodríguez, T.M. Brooks, M.A. Burgman, E.G. Barrow, L. Bland, P.J. Comer, J. Franklin, J. Link, M.A. McCarthy, R.M. Miller, N.J. Murray, J. Nel, E. Nicholson, M.A. Oliveira-Miranda, T.J. Regan, K.M. Rodríguez-Clark, M. Rouget and M.D. Spalding. 2015. “The IUCN Red List of Ecosystems: Motivations, Challenges and Applications.” Conservation Letters 8, no. 3: 214–226. Keith, D.A., J.P. Rodríguez, K.M. Rodríguez-Clark, E. Nicholson, K. Aapala, A. Alonso, et al. 2013. “Scientific Foundations for an IUCN Red List of Ecosystems.” PLoS ONE 8, no. 5: e62111. Kim, R.E. and K. Bosselmann. 2013. “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements.” Transnational Environmental Law 2: 285–309. Kotzé, L.J. 2014. “Rethinking Global Environmental Law and Governance in the Anthropocene.” Journal of Energy and Natural Resources Law 32: 121–156. Kotzé, L.J. and D. French. 2018. “The Anthropocentric Ontology of International Environmental Law and the Sustainable Development Goals: Towards an Ecocentric Rule of Law in the Anthropocene.” Global Journal of Comparative Law 7: 5–36. Lenton, T. 2016. Earth System Science: A Very Short Introduction. Oxford: Oxford University Press. Levin, S.A. 1998. “Ecosystems and the Biosphere as Complex Adaptive Systems.” Ecosystems 1, no. 5: 431–436. Lövbrand, E., S. Beck, J. Chilvers, T. Forsyth, J. Hedren, M. Hulme, R. Lidskog and E. Vasileiadou. 2015. “Who Speaks for the Future of the Earth? How Critical Social Science Can Extend the Conversation on the Anthropocene.” Global Environmental Change 32: 211–218. Millennium Ecosystem Assessment. 2005. Ecosystems and Human Well-being: Synthesis. Washington, DC: Island Press. Montoya, J.M. and D. Raffaelli. 2010. “Climate Change, Biotic Interactions and Ecosystem Services.” Philosophical Transactions of the Royal Society B 365: 2013–2018. Morgan, R.K. 2012. “Environmental Impact Assessment: The State of the Art.” Impact Assessment and Project Appraisal 30, no. 1: 1–10. Oliver, T.H., M.S. Heard, N.J.B. Issac, D.B. Roy, D. Procter, F. Eigenbrod, R. Freckleton, A. Hector, C.D.L. Orme, O.L. Petchey, V. Proença, D. Raffaelli, K.B. Suttle, G.M. Mace, B. MartínLópez, B.A. Woodcock and J.M. Bullock. 2015. “Biodiversity and Resilience of Ecosystem Functions.” Trends in Ecology and Evolution 30, no. 11: 673–684. Pachauri, R.K. and L.A. Meyer, eds. 2014. Climate Change 2014: Synthesis Report. Geneva: Intergovernmental Panel on Climate Change.

74

Olivia Woolley

Ponting, C. 1991. A Green History of the World. London: Penguin. Pyhälä, M., A.C. Brusendorff and H. Paulomäki. 2010. “The Precautionary Principle.” In Research Handbook on International Environmental Law, edited by M. Fitzmaurice, D.M. Ong and P. Merkouris, 203–226. Cheltenham: Edward Elgar. Redgwell, C. 2012. “Climate Change and International Law.” In International Law in the Era of Climate Change, edited by R. Rayfuse and S.V. Scott, 118–146. Cheltenham: Edward Elgar. Rockström, J., W. Steffen, K. Noone, Å. Persson, F.S. Chapin, III, E. Lambin, T.M. Lenton, M. Scheffer, C. Folke, H. Schellnhuber, B. Nykvist, C.A. De Wit, T. Hughes, S. van der Leeuw, H. Rodhe, S. Sörlin, P.K. Snyder, R. Costanza, U. Svedin, M. Falkenmark, L. Karlberg, R.W. Corell, V.J. Fabry, J. Hansen, B. Walker, D. Liverman, K. Richardson, P. Crutzen and J. Foley. 2009a. “Planetary Boundaries: Exploring the Safe Operating Space for Humanity.” Ecology and Society 14, no. 2: 32. Rockström, J., W. Steffen, K. Noone, Å. Persson, F.S. Chapin, III, E. Lambin, T.M. Lenton, M. Scheffer, C. Folke, H.J. Schellnhuber, B. Nykvist, C.A. de Wit, T. Hughes, S. van der Leeuw, H. Rodhe, S. Sörlin, P.K. Snyder, R. Costanza, U. Svedin, M. Falkenmark, L. Karlberg, R.W. Corell, V.J. Fabry, J. Hansen, B. Walker, D. Liverman, K. Richardson, P. Crutzen and J. Foley. 2009b. “A Safe Operating Space for Humanity.” Nature 461: 472–475. Sands, P. and Peel, J. assisted by Fabra, A. and MacKenzie, R. 2018. Principles of International Environmental Law, 4th ed. Cambridge: Cambridge University Press. Scheffer, M., S. Barrett, S.R. Carpenter, C. Folke, A.J. Green, M. Holmgren, T.P. Hughes, S. Kosten, I.A. van de Leemput, D.C. Nepstad, E.H. van de Nes, E.T.H.M. Peeters and B. Walker. 2015. “Creating a Safe Operating Space for Iconic Ecosystems.” Science 347, no. 6228: 1317–1319. Scheffers, Brett, L. De Meester, T. Bridge, A. Hoffmann, J. Pandolfi, R. Corlett, S. Butchart, P. Pearce-Kelly, K. Kovacs, D. Dudgeon, M. Pacifici, C. Rondinini, W. Foden, T. Martin, C. Mora, D. Bickford and J. Watson. 2016. “The Broad Footprint of Climate Change from Genes to Biomes to People.” Science 354, no. 6313: aaf7671. Sguotti, C. and X. Cormon, 2018. “Regime Shifts—A Global Challenge for the Sustainable Use of Our Marine Resources.” In YOUMARES 8—Oceans Across Boundaries: Learning from Each Other, edited by S. Jungblut, V. Liebich and M. Bode, 155–166. Cham: Springer. Smith, P. 2008. “Land Use Change and Soil Organic Carbon Dynamics.” Nutrient Cycling in Agroecosystems 81, no. 2: 169–178. Steffen, W., R. Leinfelder, J. Zalasiewicz, C.N. Waters, M. Williams, C. Summerhayes, A.D. Barnosky, A. Cearetta, P. Crutzen, M. Edgeworth, E.C. Ellis, J.J. Fairchild, A. Galuska, J. Grinevald, A. Haywood, J. Ivar do Sol, C. Jeandel, J.R. McNeill, E. Odada, N. Oreskes, A. Revkin, D. Richter, J. Syvltski, D. Vidas, M. Wagreich, S.L. Wing, A.P. Wolfe, and H.J. Schellnhuber. 2016. “Stratigraphic and Earth System Approaches to Defining the Anthropocene.” Earth’s Future 4: 324–345. Steffen, W., R.A. Sanderson, P.D. Tyson, J. Jäger, P.A. Matson, B. Moore III, F. Oldfield, K. Richardson, H-J Schellnhuber, B.L. Turner and R.J. Wasson. 2004. Global Change and the Earth System: A Planet Under Pressure. Berlin: Springer-Verlag. United Nations Conference on Environment and Development. 1992. “Rio Declaration on Environment and Development.” U.N. Doc. A.CONF.151/5/Rev.1, reprinted in 31 I.L.M. 849. Walker, B. and D. Salt. 2006. Resilience Thinking: Sustaining Ecosystems and People in a Changing World. Washington, DC: Island Press.

Ecological law in the Anthropocene 75 Walker, B. and D. Salt. 2012. Resilience Practice: Building Capacity to Absorb Disturbance and Maintain Function. Washington, DC: Island Press. Wiener, J.B. 2007. “Precaution.” In The Oxford Handbook of International Environmental Law, edited by D. Bodansky, J. Brunnée and E. Hey, 597–612. Oxford: Oxford University Press. Wiener, J.B. 2016. “Precaution and Climate Change.” In The Oxford Handbook of International Climate Change Law, edited by C.P. Carlane, K.R. Gray and R. Tarasofsky, 163–184. Oxford: Oxford University Press. Woolley, O.A. 2014. Ecological Governance: Reappraising Law’s Role in Protecting Ecosystem Functionality. Cambridge: Cambridge University Press. Woolley, O.A. 2015. “Ecological Governance for Offshore Wind Energy in United Kingdom Waters: Has an Effective Legal Framework Been Established for Preventing Ecologically Harmful Development.” International Journal of Marine and Coastal Law 30, no. 4: 765–793. Woolley, O.A. 2019. “What Would Ecological Climate Change Law Look Like? Developing a Method for Analysing the International Climate Change Regime from an Ecological Perspective.” Review of European, Comparative and International Environmental Law. https://onlinelibrary.wiley.com/doi/abs/10.1111/reel.12310 (early view). World Wildlife Fund. 2018. Living Planet Report 2018: Aiming Higher. Edited by M. Grooten and R.E.A. Almond. Gland: WWF. Worster, D. 1995. “The Ecology of Order and Chaos.” In People, Penguins and Plastic Trees: Basic Issues in Environmental Ethics, edited by C. Pierce and D. VanDeVeer, 280–288. Belmont, CA: Wadsworth Publishing Company. Young, R.A. 2001. Uncertainty and the Environment: Implications for Decision-Making and Environmental Policy. Cheltenham: Edward Elgar.

5

Restoring land, restoring law Theorizing ecological law with ecological restoration Emille Boulot

Introduction The purpose of this book is to envision the transformative potential of ecological law and governance: from a legal system of independence to interdependence, from one of separation of the human and nature to a relational partnership with the more-than-human, envisioning an encompassing systems-based approach to law, society and ecology. Biodiversity loss, anthropogenic climate change, habitat loss and ecosystem decline and collapse demonstrate that current environmental law has failed in its mandate of preventing environmental harm. We need new ways of living and knowing conducive to socio-ecological resilience. Ecological law seeks to overcome the limitations of current anthropocentric legal systems and to reimagine an ecologically minded, Earth-centered approach to law and governance. Ecological law recognizes that the human sphere does not operate above or outside the functions of nature, but rather it is a part of, and is inherently connected and embedded in, the Earth’s ecological systems and bound by the limits of these systems (ELGA 2016), recognizing ecology as “the disciplinary and ontological plane on which law finds itself” (Philippopoulos-Mihalopoulos 2011, 2). This chapter is an exploration of the practice of ecological restoration in the hope that it will provide insights for the development and practice of ecological law. Ecological restoration, broadly defined, seeks to restore degraded ecosystems to a historical ecological reference point or ecological trajectory (Telesetsky et al. 2017). Extensions of this definition include eco-cultural restoration or reciprocal restoration, where the restoration of natural systems also represents an opportunity to restore our relationship with nature (Kimmerer 2011; Light 2003; Van Wieren 2008). It is these articulations of a reciprocal relationship and practice that I adopt in this chapter to envision a “restoration” of law and governance. In this process of challenge, critique and construction, I conceive of ecological restoration as a boundary object. Boundary objects are entities that enhance the capacity of an idea, theory or practice to translate across culturally defined boundaries (Fox 2011). Theorizing with boundary objects can be a process of creating space for multiple ontologies and ways of knowing to come together and potentially improve and facilitate the uptake and transfer of research, ideas, technology

Restoring land, restoring law 77 and perspectives across social policy, organization, management and culture (Star 2010). Boundary objects offer an opportunity to bridge different communities of practice or communities of knowledge and to build shared understandings around a particular issue, idea or practice across various sites of knowledge and place. They also allow for the development of a shared language, theory and practice. Ecological restoration is not simply an objective scientific practice. It requires intentionally identifying social and ecological goals and in that sense is as much a governance practice where governance is integral to its definition, operation and success (Telesetsky 2013; Richardson and Lefroy 2016). The boundaries of ecological restoration stretch across many cultural domains and ways of knowing and practice. In this process of theorizing with ecological restoration, I hope to contribute to deeper understandings of ecological law, recognizing that theory is not a disembodied abstraction but rather the embodied product of interdependent relations in a lived world (Grear 2015). Theory is a practice, just as the law is, and, at its best, can be a “location of healing” (Hooks 1994). The rest of this chapter investigates the ontological assumptions of a liberal environmental law and the manner in which a culturally aware practice of ecological restoration could transform and define a law and governance system that envisions ongoing and mutual human and more-than-human flourishing.

Restoring land, restoring culture Ecological restoration refers to the process of assisting the recovery of a damaged ecosystem to restore ecological structure, complexity and integrity so that the system is self-supporting and resilient and displays a level of historical continuity and fidelity (SER International Science and Policy Working Group 2004; Suding et al. 2015). Ecological restoration does not assume restoration to a replica environment, as landscapes are dynamic. Rather, it envisions an ecological system that is historically informed, with ranges of variability and multiple potential trajectories, and is resilient and adaptive to change (Higgs et al. 2014). Concern over biodiversity assembly collapse, climate change and water security has led the UN General Assembly to declare 2021–2030 as the decade of ecosystem restoration. In response to restoration definitions that are singularly focused upon meeting ecosystem and environmental indicators at the landscape scale, there have been attempts to incorporate social, cultural, political, economic and ethical concerns in restoration definitions and objectives to recognize the very intertwined natural and cultural elements of landscapes. Terms such as landscape restoration, eco-cultural restoration, focal restoration and reciprocal restoration have emerged to define practices concerned not only with scientific value but also aesthetic, historical and traditional landscape values, reflecting an understanding that the presence of humans can be an integral part of thriving, resilient landscapes (Barbour and Schlesinger 2012; Egan et al. 2011; Moreira et al. 2006; Naveh 2005). Reciprocal restoration, as Kimmerer explains, is “the mutually reinforcing restoration of land and culture such that the repair of ecosystem services contributes to cultural revitalization and renewal of culture promotes restoration of ecological integrity” (2011, 258).

78

Emille Boulot

Culturally informed definitions of ecological restoration emphasize the inclusion of local and traditional environmental knowledge and narratives that may not have been included otherwise (Robertson et al. 2000), reflecting the recognition that many emerging ecological concepts in Western science have their antecedents in Indigenous land management (Kimmerer 2011; Moreira et al. 2006). Traditional knowledge continues to contribute to the resilience, understanding and sustainability of local ecosystems (Barbour and Schlesinger 2012; Hill et al. 2012) and can articulate the interdependency between human and environmental health: The integrity of the Western scientific model must . . . give way to the requirement of the health and well-being of individual, community, and land in the construction of an image of nature (with us in it) which effectively instructs. If value is placed in our description of the world and our place in it, then the narratives we construct will embody value and orient us. (Cheney 1993, 92) Restoration imbued with social and cultural value recognizes that landscapes have a plurality of values and functions, not just limited to natural resources and ecosystem services, but also values related to aesthetics, sense of place, cultural heritage, recreation and economics. The practice of ecological restoration in its broader articulation is inherently transdisciplinary, bridging restoration as a science and restoration as a practice (Naveh 2005; Higgs 2003; Barbour and Schlesinger 2012). For the purposes of this chapter, I refer to ecological restoration as a practice that incorporates restoration ecology, multiple social, cultural, political, economic and ethical concerns, as well as the perspectives and knowledges of local peoples.

From liberal environmental law to ecological law It is through the instruments of law and governance that future decisions regarding land management and landscape function as well as species conservation and ecosystem management are made. Law informs the parameters for intergenerational landscapes and responses to environmental damage. In its operation, law takes the human as its subject and nature as its object (Grear 2017), embedding deeply held liberal assumptions about the environment within legal constitutionalism (Mills 2016). Burdon and Martel (2017) argue that this results in a form of teleological thinking that entails a problem/solution dichotomy, with law concerned with environmental problems generally seeking to mitigate, and sometimes facilitate, environmental impacts within the current liberal system which has rationalized itself to the market (Alexander 2014). In this way, environmental law is an expression of the dominant cultural hegemony that is failing to mitigate or navigate the conditions of the Anthropocene (also known as the Capitalocene, among other terms).1 Many contemporary Western legal systems exhibit inherent limitations that impede genuinely transformative change with respect to achieving mutually

Restoring land, restoring law 79 enhancing relationships with the more-than-human and the governance of socioecological systems (Grear 2015). Environmental law and governance is shackled by concepts of private property and corporate rights, with private property and economic rationalism generally trumping any environmentally informed encroachment upon them (Bartel and Graham 2019). Furthermore, prevailing legal narratives of the physical world are limited to ideas of property and ownership (Freyfogle 1993; Bentham 1931). Nature is conceived as passive, or nonagentic, terra nullius open to annexation, an object of the human subject (Grear 2017). With this framing of the human-nature relationship exported around the world through the processes of colonization, development and globalization, this ontological dichotomy has fundamentally structured the very horizon of possibilities for who and what has rights. “Legal” thus “signal[s] a self-serving set of rules that imperialize the desires of the powerful” (Escobar 2015, 19). In the framing and construing of the environment, legal systems draw upon empirical evidence and the knowledge of a technical and “expert” class to manage and predict environmental outcomes through the application of risk management frameworks. This results in the conversion of inherent ecological uncertainties into numerical probabilities, becoming the bedrock of environmental regulation across most industrial states since the early 1970s (Jasanoff 1999). In this process, the “environment” is reduced to constitutive parts, such as air, water and land, to make it legible to empirical eyes, controllable and manipulable, separating mind from matter, culture from nature and the human from the nonhuman (Anker 2017; Escobar 2016; Jenkins 2000). The risk assessment processes rely heavily upon positivist conceptualizations of science and associated bureaucraticrationalistic policy, establishing a form of “regulatory ecological science [that] does not so much describe the environment as both actively constitute it as an object of knowledge and, through various modes of positive intervention, manage and police it” (Rutherford 1999, 56). Causation is conceived as linear and mechanistic (Jasanoff 1999) with the failure to manage and control natural and social processes and risks due, in this rationalist view, to either a lack of knowledge or competence, or a lack of political will (Jasanoff 1999). Risk, Jasanoff argues, however, cannot be perceived simply as the probability of harm but rather the “embodiment of deeply held cultural values and beliefs . . . concerning such issues such as agency, causation, and uncertainty” with state-led risk assessment frameworks “implicitly empower[ing] . . . some people as experts and exclud[ing] others as inarticulate, irrelevant or incompetent” (1999, 137). Ecological law, by contrast, envisions a transformation of the semantics of environment as resource and normatively constrains the institutions of law and governance to the ecological systems in which they are embedded (Garver 2019). Ecological legal systems further envision a shift away from human-dominated hierarchies to understandings of interspecies assemblages in relation (Haraway 2015). Recognizing that law is never simply a collection of inviolable rules and processes, but rather reflects narratives, stories and worldviews (Mills 2016), ecological law cannot simply update environmental law’s anthropocentric narrative of reason and liberalism by supplementing it with “scientific description” (Anker

80

Emille Boulot

2017, 198; Burdon 2015, 90). To overcome the alienation of Earth systems present in current legal frameworks requires knowledge of alternative ways of being and existing in the world in a way that supports an ecological logic. Multiple perspectives, practices, disciplines, understandings and knowledges are therefore essential to the development of a legal system imbued with an ecological logic. Ecological restoration is one such multidisciplinary practice that both challenges current legal paradigms and assists in the construction of an ecological one.

Challenging the preconditions of an anthropocentric legal tradition Ecological restoration raises significant questions for the environmental institutions, law and policy (Richardson and Akhtar-Khavari 2019; Telesetsky et al. 2017). It necessarily rejects references to the colonialist and nature/culture dualist concept of wilderness that has plagued environmental management and policy for decades. The mythical “pristine” and “untouched” wilderness as encountered in pre-European settlement in colonized countries such as the Americas and Australia, were ecosystems shaped by Indigenous land management practices such as fire, among others (Kimmerer and Lake 2001; Gammage 2012; Pascoe 2014). As Richardson writes “we must also confront the critical question of whether it even makes sense to conceive of a ‘nature’ separate from or coming before human settlement,” (2019, 210) the majority of ecosystems around the globe having been altered by human use and populations for millennia (Ellis and Ramankutty 2008; Flannery 2010). The inclusion of local and traditional knowledge is therefore of great benefit in the restoration of landscapes, with Kimmerer noting “it may not be possible to restore the pre-settlement landscape without also restoring the traditional land management practices” (2011, 267). This inclusion of a broader range of experts and knowledge holders has the potential to open the limited discourse and expertise of environmental law and practice. In contrast to the aegis of sustainable development, which seeks largely to forestall or foreclose future environmental degradation, restoration acknowledges and seeks to remediate past damage (Richardson and Akhtar-Khavari 2019). Ecological restoration requires the acknowledgment of past harms and a reorientation of liberal environmental law’s “present future” temporal orientation (Heinzerling 1999, 2026). Time, as conceived in the modernist tradition of environmental law, is a linear progression where present actions are mostly concerned with mitigating or averting future impacts rather than addressing past harm. For example, principles such as non-retroactivity and grandfathering impede responsibility for past harm and shield long-term polluters from transitioning to more stringent regulatory requirements (Richardson 2015, 4). Ecological restoration challenges this future goal orientation approach of environmental law, evident in principle stalwarts such as sustainable development. Being both process and outcome, ecological restoration assists a site to evolve through cyclical changes of increasing structure and complexity rather than the creation of a linear trajectory. It must necessarily reject a predefined ecological system as the uncertainty inherent to the process means that such an approach is impossible. Rather, it is an adaptive

Restoring land, restoring law 81 process and one with often ongoing human involvement, monitoring, management and feedback (SER International Science and Policy Working Group 2004; Higgs 2003), ecological recovery being more likely with active engagement than with self-recovery (Benayas et al. 2009). Ecological restoration thus creates a need for long-term, ongoing, flexible governance, extending the temporalities of traditional environmental law and creating new temporalities for the practice of ecological law. Ecological restoration also extends the generally jurisdictionally limited scale of law. In seeking to restore ecosystems and bioregions, ecological restoration works across political and legal boundaries and jurisdictions, often across various forms of tenure. Finally, ecological restoration is a practice that can facilitate the development of a partnership ethic (Merchant 2003) between the human and more-thanhuman, envisioning “a better relationship between humans and the rest of the world” (Egan et al. 2011). When practiced with law in a manner that recognizes the human as a part of, and dependent upon, the natural world (Higgs et al. 2014), it has the potential to enable what Van Wieren (2008) calls a “de-centering” of the subject of environmental law, restoring humans to ecology and eroding humannature dichotomies (Barritt 2019; Kimmerer 2011; Light 2003; Higgs 2003).

Theorizing with ecological restoration for the construction of ecological law The restoration of place-based governance The practice of ecological restoration, with broad stakeholder and community involvement and engagement, assists in the development or expansion of a sense of place. It can ground and attach people to places in which they live with deep metaphysical or emotional connections, motivating people to care for ecosystems beyond the services they provide or their aesthetics (Akhtar-Khavari and Richardson 2019; Bartel and Graham 2019; Van Wieren 2008). Restoration can instill a sense of stewardship or responsibility with respect to land and property, restoring relationship to place (Barritt 2019; Bartel and Graham 2019). Where there is the involvement of local and Indigenous people, the restoration of these relationships may be manifest in subsistence-use activities, cultural practices, language and the exercise of spiritual responsibility to restore landscapes of “human participation in ecological flourishing” (Kimmerer 2011, 260). Place-based approaches to recovery and renewal can also assist in recognizing nonhuman agency and assist in the reform of existing private property tenure regimes which are rights oriented (Bartel and Graham 2019). The restoration of such systems thus transcends the semantic designations of top-down uniform political and legal jurisdictions, envisioning a place-based, bottom-up approach to management and governance situating governance in ecological systems (Telesetsky 2013). Decentralized place-based governance is essential to normative conceptualizations of ecological law and is discussed further by Garver in this edition.

82

Emille Boulot

From an instrumental and institutional perspective, place-based governance can be supported through processes such as stewardship, bioregional planning (planning designed to maintain the integrity of a bioregion) (Berg 2009; Brunckhorst 2013), ecosystem management or “ecoscapes” which Telesetsky (2013, 498) defines as a “place-based concept for bridging the governance gap between political action and declining ecological systems.” Such approaches assist in identifying socio-ecological systems, understanding the human sphere as a part of these systems and reliant upon them, using restoration to improve landscape connectivity and creating multilevel governance arrangements to restore functions and structures of these socio-ecological systems. Developing epistemic pluralism in the governance of ecological systems Current environmental law and governance is steeped in what Lorraine Code calls an “epistemological monoculture” that assumes that the natural can be manipulated, controlled and managed in a way that ensures ongoing resource extraction (Code 2006, 8–9). This results in narrow depictions and development of governance arrangements and tools. Ecological law, however, envisions a legal system verified not only by ecological science but also the social sciences, transdisciplinary scholarship and socio-ecological understandings such as traditional ecological knowledge. It seeks to shift beyond a singular semiotic narrative of the environment (Rochford 2019) and extend our understanding of human interactions with the natural world, seeking ways of being and existing in the world that support an ecological logic (Jornet and Damşa 2019). The way in which we understand and imagine the natural world and the environment has “implications for laws, policies and individual actions,” informing the governance of ecological systems (Neimanis et al. 2015, 482). Comprehensive understandings of the practice of ecological restoration provide a rich case study of intellectual pluralism. In order to effect cultural and social restoration processes, the enduring knowledge of local and Indigenous peoples and their highly specific and diachronic understandings of place, as well as their philosophical and pragmatic prescriptions of values-led approaches to environmental management, is necessary (Kimmerer 2011). A recent Intergovernmental SciencePolicy Platform on Biodiversity and Ecosystem Services (IPBES) study confirms that robust environmental governance for restoration requires the involvement of Indigenous peoples and knowledge (IPBES 2018). But it is not only human ways of knowing to which we should attend. Akhtar-Khavari (2019) argues that “good” environmental law and policy, that actively listens and engages with the natural world, requires an epistemic plurality that incorporates plant knowledge in the governance of ecological restoration, noting that the focus on environmental science fails to acknowledge the vibrancy, sociality and meta-physicality of trees and plants. The governance of complex adaptive socio-ecological systems Ecosystems and socio-ecological systems are complex adaptive systems, that is, systems in which large networks of components with no central control and

Restoring land, restoring law 83 simple rules of operation give rise to complex, non-linear behavior, as well as adaptation via learning or evolution, exhibiting coherence and resilience under external change (Holling and Meffe 1996; Mitchell 2009). Ecological restoration as a process seeks to assist socio-ecological systems through cyclical changes of increasing ecological complexity, structure and function to increase resilience and adaptability to disturbance and changing dynamics (Balaguer et al. 2014; Higgs et al. 2014). Ecological restoration does not assume restoration to a replica environment, as landscapes are dynamic, but rather envisions an ecological system that is historically informed, with ranges of variability and multiple potential trajectories (Higgs et al. 2014). As Higgs notes, conditions of uncertainty are always prevalent in the practice of ecological restoration as “[t]here is no original condition for an ecosystem in any meaningful sense; one cannot fix a specific point in time” (2003, 38) on which to base reference to socio-ecological system features with certainty. Ecosystems can take decades or centuries to restore, with evaluation necessary to avoid costly mistakes (Nilsson et al. 2016). The National Standards for the Practice of Ecological Restoration (SERA 2017) notes that restoration is an adaptive, reflexive and systemic practice guided by site characteristics and the relationship of the site with socio-ecological systems, including climate, landscape function and community. Ecological restoration therefore requires longterm conservation management, review processes and changes in direction in order to correct for unexpected ecosystem responses, conditions requiring flexible and adaptive governance regimes to account for high levels of uncertainty and imperfect understandings of ecosystem interrelationships and feedback (Hodge and Adams 2016; Weinstein et al. 2014). In contrast to traditional environmental law frameworks that focus more on the initial and upfront conditions in the governance of ecological systems, adaptive governance is the governance of socio-ecological regimes in the face of the complexity and uncertainty associated with environmental change (Folke et al. 2005). It proposes continuous monitoring and adjustment to guide the restoration along a desired socio-ecological trajectory, acknowledging that small incremental change may be necessary when the information available is insufficient for longer-term decision-making (Buckley and Niemi 2011). Adaptive governance is thus responsive and flexible, open to input and learnings as well as being aware of the interdependent relationships between system components. Importantly, adaptive governance recognizes systems as being both multidimensional and multidisciplinary, requiring multiple perspectives and epistemic pluralism (Munda 2004) and shifting governance away from rational decision-making processes that reflect “the limits of a single representation of the system” (Kovacic 2017, 81). Systems approaches, such as adaptive governance, relinquish attachment to certainty and control, recognizing uncertainty as a structural and constant inevitability in complex systems, rather than an externality, transcending the deeply held normative aims of stability and certainty in law. Systems-based approaches to governance are therefore essential components of ecological law’s canon.

84

Emille Boulot

The restoration of law It is evident that the socio-ecological problems that characterize the Anthropocene are existential ones, deriving from the characteristics of the relationship between humans and the more-than-human (Comín 2010; Latour 1994; Vidas et al. 2015). Ecological restoration that attempts not only to restore nature, but also to restore culture and ways of relating to the world, provides opportunities to envision a legal system that is ecologically grounded. This potential, however, must be advanced and defended against what Higgs calls “technological restoration” (2003, 186). Technological restoration is a scientific-technical practice dominated by elite experts and technicians, concerned with efficiency and uniformity, resulting in restoration as a commodity (Higgs 2003). The practices of rehabilitation and reclamation often used in mine closures and other extractive practices, concerned with ensuring the reparation of ecosystem components, provide an example. Reducing ecosystems to components, such as water and soil quality, undermines the appreciation of the overall complexity of these systems (Norgaard 2010) and can also result in the prioritization of certain restoration goals, such as carbon sequestration, over others, resulting in unintended circumstances for objectives such as biodiversity (Buckley and Niemi 2011). With the ecosystem services narrative currently dominating restoration governance and policy at the international level, there is a risk of the ongoing commodification of ecological systems and the reduction of ecosystems into component functions (Higgs et al. 2014; Telesetsky 2013). This has troubling connotations for an ecological governance: environmental governance can no more succeed around the metaphor of ecosystem services apart from the richness of ecological thinking than mortgage markets can succeed on the myth that housing prices will always rise . . . Somehow, we need to make a significant transition toward richer ways of understanding and governing. (Norgaard 2010, 7) Offsetting is another equally troubling narrative and governance framework evident in technological restoration. Common in wetland management in the US, climate mitigation and some marine developments (Jacob et al. 2018), offsetting questionably assumes that replica environments can be restored elsewhere, rationalizes the destruction of ecosystems and very likely results in environmental justice issues when the destroyed ecosystems have particular importance to marginalized peoples or communities (Barritt 2019). Ecological restoration governance is an emerging area of law and governance, and with conscientious advocacy and defense of carefully considered ecological restoration, an ecologically informed governance framework could emerge. Engaging with concepts of stewardship and Leopold’s “land ethic” (1972) could assist in the development of an “ethic of restoration” that values the places in which we live and considers the process of restoring as a place-based practice

Restoring land, restoring law 85 rather than one of abstraction of goods and services (Telesetsky 2013). By facilitating community and local engagement and recognizing the deep interconnections and interdependence of social and ecological systems (Bliss and Fischer 2011), ecological restoration is a practice that can improve socio-ecological wellbeing and relationships (Higgs 2010). Due to the need for deliberate values-led decision-making, ecological restoration is inherently a process that is context and place specific, requiring ongoing negotiation, adaptation and experiential learning, transforming both people and place (Egan et al. 2011). These factors lend it transformative potential in the ongoing negotiation of environmental to ecological legalities.

Conclusion Values-led ecological restoration envisions renewed relationships with the Earth, relationships that inherently challenge many of the underlying assumptions and narratives of liberal environmental law and contain the possibility of transforming law’s liberal ontology to one of reciprocity (Mills 2016). The governance of restoration has the potential to not only restore ecological integrity, but to also restore culture and the ways in which we relate to the world around us, recognizing that we are formed by, bound to and in interaction with the human and the more-than-human (Kimmerer 2011). As a practice rooted in place and people, it provides a case study of ecological governance in action. As Law quite strongly states: “there is nothing outside practice. We are embedded in practices all the way down” (2015, 130). And by its practice, values-led restoration creates “the way things ought to be in the face of the way things currently are” (Van Wieren 2008, 246). The challenge remains for ecological law and governance to incorporate this practice into the practice of law. The promise of ecological restoration governance to contribute to a deeper articulation of ecological law is not, however, a foregone conclusion. Ecological restoration law and governance must be anticipated, fostered and conscientiously defended from the ontological and epistemological frameworks of traditional forms of environmental law and governance that seek to continue to disaggregate and commodify the “natural” world.

Note 1 The term “Capitolocene” is used to acknowledge some of the conceptual limitations of the Anthropocene and describe the manner in which industrial capitalism, as a system of power, accumulation and reproduction, has shaped the human-nature relationship as well as recognizing the unequal relationships between humans. See Moore (2017).

References Akhtar-Khavari, A. 2019. “The Social Life of Plants and Trees and the Limits of Environmental Law’s Recovery Imagination.” In Ecological Restoration Law: Concepts and Case Studies, edited by A. Akhtar-Khavari and B.J. Richardson, Oxon, UK: Routledge.

86

Emille Boulot

Akhtar-Khavari, A. and B.J. Richardson. 2019. “Ecological Restoration and the Anthropocene.” In Ecological Restoration Law: Concepts and Case Studies, edited by A. AkhtarKhavari and B.J. Richardson, Oxon, UK: Routledge. Alexander, S. 2014. “Wild Law from below: Examining the Anarchist Challenge to Earth Jurisprudence.” In Wild Law—In Practice, edited by M. Maloney and P. Burdon. Oxon, UK: Routledge. Anker, K. 2017. “Law As . . . Forest: Eco-Logic, Stories and Spirits in Indigenous Jurisprudence.” Law Text Culture 21, no. 191–213. Balaguer, L., A. Escudero, J.F. Martín-Duque, I. Mola and J. Aronson. 2014. “The Historical Reference in Restoration Ecology: Re-Defining a Cornerstone Concept.” Biological Conservation 176 (August): 12–20. Barbour, W. and C. Schlesinger. 2012. “Who’s the Boss? Post-Colonialism, Ecological Research and Conservation Management on Australian Indigenous Lands: Comment.” Ecological Management & Restoration 13, no. 1: 36–41. Barritt, E. 2019. “The Story of Stewardship and Ecological Restoration.” In Ecological Restoration Law: Concepts and Case Studies, edited by A. Akhtar-Khavari and B.J. Richardson. Oxon, UK: Routledge. Bartel, R. and N. Graham. 2019. “Ecological Reconciliation on Private Agricultural Land: Moving beyond the Human-Nature Binary in Property-Environment Contests.” In Ecological Restoration Law: Concepts and Case Studies, edited by A. Akhtar-Khavari and B.J. Richardson. Oxon, UK: Routledge. Benayas, J.M.R., A.C. Newton, A. Diaz and J.M. Bullock. 2009. “Enhancement of Biodiversity and Ecosystem Services by Ecological Restoration: A Meta-Analysis.” Science 325, no. 5944: 1121–1124. Bentham, J. 1931. A Theory of Legislation. London: Kegan Paul. Berg, P. 2009. Envisioning Sustainability. San Francisco: Subculture. Bliss, J.C. and A.P. Fischer. 2011. “Toward a Political Ecology of Ecosystem Restoration.” In Human Dimensions of Ecological Restoration, edited by D. Egan, E.E. Hjerpe and J. Abrams, 135–148. Washington, DC: Island Press. Brunckhorst, D J. 2013. Bioregional Planning: Resource Management Beyond the New Millennium. Routledge. Buckley, M. and E. Niemi. 2011. “Climate Change Implications for Ecological Restoration Planning.” In Human Dimensions of Ecological Restoration, edited by D. Egan, E.E. Hjerpe and J. Abrams, 177–187. Washington, DC: Island Press. Burdon, P. 2015. Earth Jurisprudence: Private Property and the Environment. Law, Justice and Ecology. Abingdon, Oxon: Routledge. Burdon, P. and J. Martel. 2017. “Environmentalism and an Anarchist Research Method.” In Research Methods in Environmental Law, edited by A. Philippopoulos-Mihalopoulos and V. Brooks. Cheltenham, UK: Edward Elgar Publishing. Cheney, J. 1993. “Postmodern Environmental Ethics: Ethics as Bioregional Narrative.” In Environmental Ethics: Divergence and Convergence, edited by S.A. and R. Botzler. New York: McGraw-Hill. Code, L. 2006. Ecological Thinking: The Politics of Epistemic Location. New York: Oxford University Press. Comín, F.A., ed. 2010. Ecological Restoration: A Global Challenge. Cambridge: Cambridge University Press. Ecological Law and Governance Association (ELGA). 2016. “Oslo Manifesto.” www.elga. world/oslo-manifesto. Egan, D., E.E. Hjerpe and J. Abrams, eds. 2011. Human Dimensions of Ecological Restoration: Integrating Science, Nature, and Culture. Washington, DC: Island Press.

Restoring land, restoring law 87 Ellis, E.C. and N. Ramankutty. 2008. “Putting People in the Map: Anthropogenic Biomes of the World.” Frontiers in Ecology and the Environment 6, no. 8: 439–447. Escobar, A. 2015. “Transiciones: A Space for Research and Design for Transitions to the Pluriverse.” Design Philosophy Papers 13, no. 1: 13–23. Escobar, A. 2016. “Thinking-Feeling with the Earth: Territorial Struggles and the Ontological Dimension of the Epistemologies of the South.” Revista de Antropología Iberoamericana 11, no. 1: 11–32. Flannery, T.F. 2010. Here on Earth: A Natural History of the Planet. New York: Grove Press. Folke, C., T. Hahn, P. Olsson and J. Norberg. 2005. “Adaptive Governance of SocialEcological Systems.” Annual Review of Environment and Resources 30, no. 1: 441–473. Fox, N. 2011. “Boundary Objects, Social Meanings and the Success of New Technologies.” Sociology 45, no. 1: 70–85. Freyfogle, E.T. 1993. “Ownership and Ecology.” Case Western Reserve Law Review 43, no. 4: 31. Gammage, B. 2012. The Biggest Estate on Earth: How Aborigines Made Australia. Sydney: Allen and Unwin. Garver, G. 2019. “A Systems-based Tool for Transitioning to Law for a Mutually Enhancing Human-Earth Relationship.” Ecological Economics 157: 165–174. Grear, A. 2015. “Towards New Legal Futures? In Search of Renewing Foundations.” In Thought, Law, Rights and Action in the Age of Environmental Crisis, edited by A. Grear and E. Grany. Cheltenham, UK: Elgar. Grear, A. 2017. “‘Anthropocene, Capitalocene, Chthulucene’: Re-Encountering Environmental Law and Its ‘Subject’ with Haraway and New Materialism.” In Environmental Law and Governance for the Anthropocene, edited by L. Kotzé. Portland: Hart Publishing. Haraway, D. 2015. “Anthropocene, Capitalocene, Plantationocene, Chthulucene: Making Kin.” Environmental Humanities 6, no. 1: 159–165. Heinzerling, L. 1999. “Environmental Law and the Present Future.” Georgetown Law Journal 87: 2025. Higgs, E. 2003. Nature by Design: People, Natural Process, and Ecological Restoration. Cambridge, MA: MIT Press. Higgs, E. 2010. “Focal Restoration.” In Ecological Restoration: A Global Challenge, edited by F.A. Comín. Cambridge, UK: Cambridge University Press. Higgs, E., D.A. Falk, A. Guerrini, M. Hall, J. Harris, R.J. Hobbs, S.T. Jackson, J.M. Rhemtulla and W. Throop. 2014. “The Changing Role of History in Restoration Ecology.” Frontiers in Ecology and the Environment 12, no. 9: 499–506. Hill, R., C. Grant, M. George, C.J. Robinson, S. Jackson and N. Abel. 2012. “A Typology of Indigenous Engagement in Australian Environmental Management: Implications for Knowledge Integration and Social-Ecological System Sustainability.” Ecology and Society 17, no. 1: Article 23. Hodge, I. and W. Adams. 2016. “Short-Term Projects versus Adaptive Governance: Conflicting Demands in the Management of Ecological Restoration.” Land 5, no. 4: 39. https://doi.org/10.3390/land5040039. Holling, C.S. and G.K. Meffe. 1996. “Command and Control and the Pathology of Natural Resource Management.” Conservation Biology 10, no. 2: 328–337. Hooks, B. 1994. Teaching to Transgress: Education as the Practice of Freedom. New York: Routledge. Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). 2018. “Thematic Assessment of Land Degradation and Restoration.” IPBES/6/INF/1/Rev.1. Jacob, C., A. Buffard, S. Pioch and S. Thorin. 2018. “Marine Ecosystem Restoration and Biodiversity Offset.” Ecological Engineering 120 (September): 585–594.

88

Emille Boulot

Jasanoff, S. 1999. “The Songlines of Risk.” Environmental Value 8, no. 2: 135–152. Jenkins, R. 2000. “Disenchantment, Enchantment and Re-Enchantment.” Max Weber Studies 1: 11–32. Jornet, A. and C. Damşa. 2019. “Unit of Analysis from an Ecological Perspective: Beyond the Individual/Social Dichotomy.” Learning, Culture and Social Interaction (August): 100329. https://doi.org/10.1016/j.lcsi.2019.100329. Kimmerer, R. 2011. “Restoration and Reciprocity: The Contributions of Traditional Ecological Knowledge.” In Human Dimensions of Ecological Restoration: Integrating Science, Nature, and Culture, edited by D. Egan, E.E. Hjerpe and J. Abrams. Washington: Island Press. Kimmerer, R. and F.K. Lake. 2001. “Maintaining the Mosaic: The Role of Indigenous Burning in Land Management.” Journal of Forestry 99: 36–41. Kovacic, Z. 2017. “Investigating Science for Governance through the Lenses of Complexity.” Futures 91 (August): 80–83. Latour, B. 1994. We Have Never Been Modern. Cambridge, MA: Harvard University Press. Law, J. 2015. “What’s Wrong with a One-World World?” Distinktion: Journal of Social Theory 16, no. 1: 126–139. Leopold, A. 1972. A Sand County Almanac and Sketches Here and There. New York: Oxford University Press. Light, A. 2003. “Ecological Restoration and the Culture of Nature: A Pragmatic Perspective.” In Environmental Ethics: An Anthology, Malden, MA: Blackwell Pub. Merchant, C. 2003. Reinventing Eden: The Fate of Nature in Western Culture. New York: Routledge. Mills, A. 2016. “The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today.” McGill Law Journal 61, no. 4: 847–884. Mitchell, M. 2009. Complexity: A Guided Tour. Oxford: Oxford University Press. Moore, J.W. 2017. “The Capitalocene, Part I: On the Nature and Origins of Our Ecological Crisis.” The Journal of Peasant Studies 44, no. 3: 594–630. https://doi.org/10.1080/030 66150.2016.1235036. Moreira, F., A.I. Queiroz and J. Aronson. 2006. “Restoration Principles Applied to Cultural Landscapes.” Journal for Nature Conservation 14, no. 3–4: 217–224. Munda, G. 2004. “Social Multi-Criteria Evaluation: Methodological Foundations and Operational Consequences.” European Journal of Operational Research 158, no. 3: 662–677. Naveh, Z. 2005. “Epilogue: Toward a Transdisciplinary Science of Ecological and Cultural Landscape Restoration.” Restoration Ecology 13, no. 1: 228–234. Neimanis, A., C. Åsberg and S. Hayes. 2015. “Post-humanist Imaginaries.” In Research Handbook on Climate Governance, edited by K. Bäckstrand and E. Lövbrand, 480–490. Cheltenham, UK: Edward Elgar. Nilsson, C., A.L. Aradottir, D. Hagen, G. Halldórsson, K. Høegh, R.J. Mitchell, K. Raulund-Rasmussen, K. Svavarsdóttir, A. Tolvanen and S.D. Wilson. 2016. “Evaluating the Process of Ecological Restoration.” Ecology and Society 21, no. 1: Article 41. https:// doi.org/10.5751/ES-08289-210141. Norgaard, R.B. 2010. “Ecosystem Services: From Eye-Opening Metaphor to Complexity Blinder.” Ecological Economics 69, no. 6: 1219–1227. Pascoe, B. 2014. Dark Emu: Black Seeds: Agriculture or Accident? Broome, Western Australia: Magabala Books. Philippopoulos-Mihalopoulos, A. 2011. “Looking for the Space between Law and Ecology.” In Law and Ecology: New Environmental Foundations, edited by A. PhilippopoulosMihalopoulos. Oxon, UK: Routledge.

Restoring land, restoring law 89 Richardson, B.J. 2015. “Reclaiming Nature: Eco-Restoration of Liminal Spaces.” Australian Journal of Environmental Law 2, no. 1: 1–23. Richardson, B.J. 2019. The Art of Environmental Law: Governing with Aesthetics. Oxford, UK: Hart Publishing. Richardson, B.J. and A. Akhtar-Khavari, eds. 2019. Ecological Restoration Law: Concepts and Case Studies. New York, NY: Routledge. Richardson, B.J. and T. Lefroy. 2016. “Restoration Dialogues: Improving the Governance of Ecological Restoration: Restoration Dialogues.” Restoration Ecology 24, no. 5: 668–673. Robertson, M., P. Nichols, P. Horwitz, K. Bradby and D. MacKintosh. 2000. “Environmental Narratives and the Need for Multiple Perspectives to Restore Degraded Landscapes in Australia.” Ecosystem Health 6, no. 2: 119–133. Rochford, F. 2019. “Reconstructing the Environment: Perception and Change in Australia’s Murray Darling Basin.” In Ecological Restoration Law: Concepts and Case Studies, edited by A. Akhtar-Khavari and B.J. Richardson. Oxon, UK: Routledge. Rutherford, P. 1999. “The Entry of Life into History.” In Discourses of the Environment, edited by E. Darier. Oxford: Blackwell. SER International Science and Policy Working Group. 2004. “The SER International Primer on Ecological Restoration.” Society for Ecological Restoration. Standards Reference Group SERA. 2017. “National Standards for the Practice of Ecological Restoration in Australia.” Second Edition. Society for Ecological Restoration Australasia. www.seraustralasia.com. Star, S.L. 2010. “This Is Not a Boundary Object: Reflections on the Origin of a Concept.” Science, Technology, and Human Values 35, no. 5: 601–617. Suding, K., E. Higgs, M. Palmer, J.B. Callicott, C.B. Anderson, M. Baker, J.J. Gutrich, et al. 2015. “Committing to Ecological Restoration.” Science 348, no. 6235: 638–640. Telesetsky, A. 2013. “Ecoscapes: The Future of Place-Based Ecological Restoration Laws.” Vermont Journal of Environmental Law 14, no. 4: 493. Telesetsky, A., A. Cliquet and. Akhtar-Khavari. 2017. Ecological Restoration in International Environmental Law. Routledge Research in International Environmental Law. Oxon: Routledge. Van Wieren, G. 2008. “Ecological Restoration as Public Spiritual Practice.” Worldviews: Global Religions, Culture, and Ecology 12, no. 2–3: 237–254. Vidas, D., O.K. Fauchald, O. Jensen and M.W. Tvedt. 2015. “International Law for the Anthropocene? Shifting Perspectives in Regulation of the Oceans, Environment and Genetic Resources.” Anthropocene 9 (March): 1–13. Weinstein, M.P., S.Y. Litvin and J.M. Krebs. 2014. “Restoration Ecology: Ecological Fidelity, Restoration Metrics, and a Systems Perspective.” Ecological Engineering 65 (April): 71–87. https://doi.org/10.1016/j.ecoleng.2013.03.001.

6

Are rights of nature radical enough for ecological law? Geoffrey Garver1

Introduction Rights of nature are emerging as a prominent example of a more ecological approach to law than is common in contemporary environmental law. A laudable objective behind rights of nature is to stem and reverse the loss of species abundance and biodiversity, dangerous anthropogenic climate disruption and other ecological crises associated with the modern global economy (Burdon and Williams 2016; Chapron et al. 2019). Recognition of rights of nature in local, national and global legal arenas (Boyd 2017; Fitz-Henry 2018) reflects a significant hopeful shift toward a more ecologically sustainable relationship between humanity and the Earth. Rights of nature put humans and nonhumans on equal footing within a holistic arena of interdependent rights and therefore are more ecological than contemporary environmental law, which largely maintains human dominance over nonhuman nature through enforcement of property rights (Garver 2013). However, because they emerged from rights-based legal frameworks developed within an anthropocentric worldview, rights of nature risk perpetuating treatment of humans as separate from and superior to the rest of nature (Anker 2017). Given the strong link between human-nature dualism and ongoing ecological disruption from human activities, this aspect of rights of nature is problematic for ecological law, a foundation of which is treating humans as an integral part of nature (ELGA 2016; Capra and Mattei 2015; Garver 2013). A key sign of anthropocentrism in rights of nature is that they are typically described as giving personhood to nature in the law (Boyd 2017, 48). Contemporary law is well suited to framing rights of nature this way, and lawmakers and courts in several nations have already either legislatively adopted or adjudicated rights of nature within existing rights frameworks (Boyd 2017; Burdon and Williams 2016). Yet, giving nature personhood and rights essentially equips nature for battle with other rights holders who impact nature’s rights in a way that— unlike nature—is divisive, reductionist and atomistic. To place holistic protection of nature firmly within a human-inclusive ecocentric worldview and better support the thriving and regeneration of Earth’s whole community of life (Garver 2019), ecological law should be based more clearly and coherently on the integration of humans into nature. Instead of incorporating rights that give nature legal

Are rights of nature radical enough? 91 personhood, ecological law should ultimately be about adopting principles and rules that give people naturehood in the law (Braverman 2018, 135). This chapter questions whether rights of nature are radical enough for ecological law in light of inherent features of rights-based frameworks and the metaphor of giving legal personality to nature. Although giving nature rights and legal personhood is welcome as a transitional trend that signals seriously insufficient protection of ecosystems, giving legal naturehood to people would be more consistent with the integration of humans in nature. However, recognizing legal naturehood for humans is likely to be a long-term endeavor involving major shifts in worldviews regarding the human-nature relationship that go far beyond the law. As a transitional concept, rights of nature must not foreclose more radical options and they must be fiercely protected against the considerable risk of erosion so long as they remain embedded in legal systems grounded in anthropocentric worldviews.

An overview of the case for rights of nature The idea of giving rights to nature directly, which goes further than the human right to a healthy environment and other rights-based approaches to environmental protection (Chapron et al. 2019), arose long before it coalesced into a broad social movement and started sprouting in various legal forms. John Muir and Aldo Leopold, towering figures in the history of environmentalism in the United States, both alluded to the need for something like rights for nature (Boyd 2017, 109–110) in the nineteenth and early twentieth centuries, and in 1972, Christopher Stone famously proposed that trees should have standing in court (Stone 1972). Building on these ideas and calls for recognition of rights of nonhuman components of ecosystems such as by Berry (1999), the current global rights of nature movement emerged in large part due to the efforts of Pennsylvania lawyers who started the Community Environmental Legal Defense Fund (CELDF) in the mid1990s to defend rural Pennsylvania communities against a range of environmentally damaging assaults (Boyd 2017, 110–130; Fitz-Henry 2018, 85). CELDF has played a key role in helping both local and national governments draft legislation or constitutional provisions, including those in the Ecuadorian Constitution, that establish rights for nature (Boyd 2017, 171). The gradual integration of Māori worldviews into court rulings, treaty settlements and legislation in New Zealand, leading to recognition of the Whanganui River as a legal person in 2011, is often associated with the rise of the rights of nature movement (Boyd 2017, 133–143; Chapron et al. 2019). With varying degrees of success, rights of nature or personhood for elements of nonhuman nature have now been adopted or recognized by courts or lawmakers in widespread places, most notably Bolivia, Colombia, Ecuador, India, New Zealand and the United States (Boyd 2017; Chapron et al. 2019). The trend is growing. Boyd asserts that rights of nature have potential to erode three ideas deeply entrenched in common understanding of the human-Earth relationship (2017, xxii–xxiii). First, rights of nature derive from an ecocentric perspective of humans as integrated into their supporting ecosystems, not as masters, controllers and

92

Geoffrey Garver

owners of them. Second, rights of nature are a counterforce to treating nonhuman nature as nothing but human property. Third, they reflect a growing realization that endless economic growth is not necessary for human progress. Advocacy for rights of nature therefore rests on the hope that they provide a powerful antidote to deeply entrenched socio-political commitment to anthropocentrism, property rights and infinite economic growth, all of which are strongly reflected in contemporary law (Garver 2019). Giving nature rights within an existing rights framework also signals that a power imbalance is in need of correction, just as widely shared acknowledgment that racial and ethnic minorities and women were suffering from injustice gave rise to new civil and human rights (Burdon and Williams 2016). Legal rights signal that certain activities are no longer acceptable and efforts will be made to constrain them with the force of law. The rights of nature movement derives in part from a concern that, by merely regulating the ongoing erosion of humanity’s ecological life support systems, contemporary environmental law helps to hold in place a harmful status quo (Humphreys 2017, 463; Chapron et al. 2019, 1392). Advocates for rights of nature also raise the compelling argument that if corporations, trusts, municipalities and other juridical persons can have legal personhood despite lacking human attributes, surely nonhuman life can as well (Babcock 2016, 50; Chapron 2019, 1392). Indeed, rights of nature can be seen as a necessary counterforce to corporate personhood (Fitz-Henry 2018, 86–87). Rights of nature might also give contemporary expression to long-held Indigenous worldviews and legal traditions rooted in ecocentrism or laws of nature (Borrows 2010, 28–29; Boyd 2017, xxix–xxxii; Chapron 2019, 1392). Rights of nature are often explicitly linked to Indigenous worldviews. The Whanganui River settlement in New Zealand reflects a sacred and communal relationship that a specific Indigenous group maintains with the river (Boyd 2017, 131–134; Argyrou and Hummels 2019). In Ecuador, Indigenous activists advocated for constitutional recognition of rights of nature (Tanasescu 2013, 847). Yet, Indigenous groups have criticized implementation of those rights in both Ecuador and Bolivia for misconstruing Indigenous concepts like Sumak Kawsay or buen vivir in order to justify ecologically harmful extractive and other activities (Lalander 2015, 150–152). Furthermore, even though Indigenous worldviews and legal traditions vary widely, many give emphasis to relationships rather than rights (Coyle 2017, 6) or reflect aversion to state-centered approaches that favor uniform interpretations of rights that overlook diverse contexts or mistranslate original intentions or meanings (Mills 2016; Coyle 2017, 10). For example, Whanganui Iwi trustees for the Whanganui River settlement resist close alignment of the settlement with the rights of nature movement. They note that the river’s status isn’t about nature only, it isn’t about rights for people, it isn’t about rights to culture—it is about obligations and duties to see and place ourselves within natures [sic] scheme and ensure that we work with nature rather than against it. (Ngā Tāngata Tiaki 2020)

Are rights of nature radical enough? 93 Therefore, rights of nature cannot be associated too closely with Indigenous worldviews and traditions.

The problem with rights-based frameworks and giving legal personhood to nature Rights of nature are typically seen as a consequence of giving legal personality or personhood to nature (Tanasescu 2013; Babcock 2016; Boyd 2017). Once nature has personhood in law, it follows that nature then has legal rights that are accorded to natural persons. What “legal personality” and “personhood” mean is therefore important for understanding rights of nature (Gindis 2016). As will be seen, the meaning of personhood is dependent on the anthropocentric worldviews in which it arose and evolved and on a prevailing focus on the individual when it is aligned with rights in the law. The word person derives from prosopon, the Ancient Greek word for the masks used in theater (Trendelenburg 1910; Gindis 2016; Brozek 2017). It evolved to refer to the various legal statuses a person, or persona, could assume in Roman law (Brozek 2017), for example as a citizen or a public official, much like roles in a play. Over time, person took on notions of individuality and rationality (Brozek 2017, 4), and throughout its subsequent evolution, personhood has been consistently defined with reference to various attributes or roles implicitly or explicitly considered unique to humans (Trendelenburg 1910; Dewey 1926; Burdon 2015). A legal person is essentially a bearer of rights and responsibilities recognized in law, such as ownership of property or the ability to enter into binding contracts (Dewey 1926; Boyd 2017). In Western legal systems, the human capacity for private ownership has been enveloped by the view of humans as separate from and superior to nature and to nonhuman things (Burdon 2015, 15–46), and aligned closely with personhood (Kurki 2017, 72). Legal personhood has also denoted notions of social or political status, such that some natural persons, such as slaves in ancient Greece and Rome, or minors and mentally incompetent people today, have had little or no recognition as legal persons (Gindis 2016). In modern contexts, a focus on individual liberties and rights tends conceptually to isolate individual rights holders from the broader whole. This effect of isolating and distinguishing rights holders from other rights holders applies even in the case of collective rights, which might best describe rights of nature (Youatt 2017; Chapron et al. 2019, 1392). As far back as ancient Rome, legal personhood was extended to entities made up of several people, such as guilds and municipalities, and soon after the dawn of the corporation in the early modern era, it was extended to private corporations (Pollman 2011, 1631–1632). But legal persons do not necessarily have all of the rights and duties of natural persons (Dewey 1926); a corporation has no right to marry and have a family or to a healthy environment. A concern about extending personhood to entities such as corporations is that even if legal personhood does not require or create human traits (Gindis 2016), giving corporations legal personhood can reinforce a depiction of people as economic actors above all else. For example, Fitz-Henry asserts that

94

Geoffrey Garver the metaphor of corporate personhood has had far-reaching effects beyond the realm of law in not only shifting how shareholders and consumers think about corporations (for example, by attributing to them motives such as greed or benevolence) but also by irrevocably altering how people think about themselves (for example, as minienterprises or bundles of always-improvable assets). (2018, 87)

Because legal personhood retains some notions of actual personhood, an important question for ecological law is what kind of person nature is assumed to be if nature is given legal personhood. The most prominent contender in Western law must be the rational person of economics, who acts always in her own self-interest and assumes others do as well. This is, by and large, the type of personhood epitomized in corporations legally beholden to their profit-seeking shareholders, and in legal instruments that grant land-grabbers property interests in the remote ecosystems from which they seek to extract monetary gain but about which they know little (Garver 2019a). The implications of extending this soulless monoculture of human identity to nature are jarring. Even if nature might be seen through a Darwinian lens (rightly or wrongly) as at times profit-seeking, transactional and competitive, nature is to a much more significant extent relational, wondrous, interconnected and diverse. Concerns about giving rights to nature are not limited to misgivings about legal personhood for nature. If rights of nature are ultimately intended to affect human behavior, there might be more preferable means for encoding constraints on behavior in the law. In particular, the overarching goal of the rights of nature movement is to prohibit or constrain human activity that overly harms other elements of the ecosystems in which humans are embedded, or those ecosystems as a whole. In other words, rights of nature cannot be considered absolute, such that any human use of nature is foreclosed (Nash 1993); instead, giving nature rights and standing—that is, equipping nonhuman elements of nature with a juridical voice in relevant legal arenas—presumably helps in determining what constitutes actionable harm and what constraints should be imposed on human activities. Yet, this framing increases the likelihood of difficult decisions that alternative means for imposing new ecological responsibilities on people might avoid. For example, since the most forceful aspect of rights of nature is that they implicitly impose enforceable responsibilities on humans, they might be better framed directly in terms of those duties. Rather than leaving it to the courts to sort out what human responsibilities derive from nature’s rights, why not spell out those responsibilities explicitly? Or why not provide, for example, that the communities most committed to maintaining a thriving human relationship with nonhuman nature in a particular place have the primary authority for regulating human activities in that place? Or why not incorporate into law the relevant features of those communities, including Indigenous ones, that have successfully developed place-based customs, practices and rules for maintaining a mutually enhancing human-nature relationship (Ostrom 1990; Agrawal 2001; Garver 2019)? Rights

Are rights of nature radical enough? 95 of nature should not limit consideration of other approaches that undo anthropocentrism in law more persuasively, for example by drawing from Indigenous worldviews and legal traditions. The risk of rights of nature obstructing a plurality of diverse approaches for achieving the underlying goal of a mutually enhancing human-Earth relationship is likely especially high when they are embedded in the instruments of nation-states so as to create a kind of state-centered monoculture of rights of nature. Alternatives to rights of nature include some that are quite radical, such as creating space for establishing thoroughly transformed economic, social, political or legal structures via protest, civil disobedience or other means akin to those of social movements in North America and Europe in the 1960s and 1970s (Burdon and Williams 2016, 210). These more socially disruptive options typically focus more directly on the need to shift from deeply entrenched anthropocentric worldviews to human-inclusive ecocentric ones that rights of nature advocates ultimately seek. Although rights of nature do not necessarily foreclose these alternatives, they may create the illusion that other options are no longer needed, or they may impede the development of “more radical political projects” (Burdon and Williams 2016, 210). Aside from potentially impeding better alternatives, rights-based frameworks more generally risk erosion of nature’s rights if they are implemented and adjudicated without an accompanying significant global shift in relevant paradigms and power relationships (Escobar 2010; Whittemore 2011). The experience of the right to a healthy environment in Pennsylvania is a cautionary tale. The Pennsylvania Supreme Court has held that the state’s constitutional right to a healthy environment must be balanced against other constitutional and social and economic rights.2 As a result, the right to a healthy environment has had little impact (Cussack 1993). In jurisdictions with rights of nature, while some courts have recognized that nature’s rights must be superior to other rights because all other rights holders ultimately depend on nature for their survival (Burdon and Williams 2016), others have adopted a narrow view of the scope of rights of nature and accorded more weight to economic development interests, and the remedial orders in some successful cases have relied primarily on existing environmental laws or have not been effectively implemented (Rühs and Jones 2016, 11–13). Even with burdens of proof, legal presumptions and other rules weighted in favor of nature’s rights, the lack of specificity regarding the full extent and meaning of those rights leaves them vulnerable to erosion. For example, the rights of nature may have different meaning at different scales. Building a hydroelectric dam may appear to violate the rights of nature because of harm to local ecosystems but to favor the rights of nature at the global scale because it would reduce greenhouse gas emissions (Rühs and Jones 2016). As well, because nature’s rights do not preclude all human use and exploitation of nature, judicial determinations of what human activity violates nature’s rights may vary considerably (Rühs and Jones 2016, 11–13), especially with so much of nature already severely damaged or altered because of human interventions (Ellis and Ramankutty 2008). In societies built on anthropocentric worldviews, the legal landscape is ripe for gradual

96

Geoffrey Garver

erosion of nature’s rights as lawyers oppose them with arguments in support of economic development or other societal interests. Erosion of nature’s rights is especially likely if they remain embedded in a growth-insistent capitalistic global economic system, as they are likely to be for quite a long time (Burdon and Williams 2016; Garver 2019). Rights-based frameworks, in theory, set up an arena in which all rights holders can engage legally with each other, typically at the individual level (Burdon and Williams 2016). Yet, the enactment or recognition of rights of nature ultimately has meaning only with respect to the relationships of nonhuman nature with humans; the interactions of different elements of nonhuman nature with each other—a zebra and a crocodile, or a river and the trees shading it—have no need for adjudication or accounting in legal arenas (Burdon and Williams 2016). In the rights of nature discussion, the focus is ultimately on human responsibilities to act with respect and care toward other parts of Earth’s living communities, not nature’s rights (Burdon and Williams 2016). A lesson regarding the challenge of extracting rights of nature from anthropocentric worldviews can be drawn from the way monetary valuation of ecosystem services has encroached on the field of ecological economics. A core tenet of ecological economics is that a well-functioning, Earth-connected human economy must operate within ecological limits on material and energy throughput (Daly 1996). This perspective tilts ecological economics toward human-inclusive ecocentrism, especially relative to conventional economics. The use of multi-criteria decision-making for situations that involve incommensurate values or do not have the characteristics of true market transactions for other reasons, in lieu of forcing monetary valuation to fit non-market situations, is one way in which ecological economics makes room for ecocentric approaches (Martinez-Alier et al. 1998; Kallis et al. 2013). Non-monetary multi-criteria decision-making avoids problematic reliance on utilitarian personal preferences reflected in market prices and monetary valuations (Daly and Farley 2004; Kallis et al. 2013). Nonetheless, the contrary assumption that all relevant factors in the economy can and should be monetized and then subjected to economic forces to reveal best decisional outcomes has now crept into ecological economics. This trend derives from a research team’s estimate of the monetary value of the world’s ecosystem services and natural capital compared to world gross national product (Costanza et al. 1997). By itself, the anthropocentric concept of ecosystem services is in tension with the human-inclusive ecocentric fundamentals of ecological law. In ecological law, any concept of ecosystem services to humans would need always to be coupled with a reciprocal concept of human services to ecosystems (Garver 2019)—for example, ecosystems whose thriving has evolved to integrate human interventions such as Indigenous practices of sustainable harvesting through concepts of gift exchange (Kimmerer 2013). Using monetary valuation of ecosystem services to make decisions and policy gives them an even greater anthropocentric orientation. In short, monetary valuation of ecosystem services is inconsistent with ecological economics and ecological law in that it accentuates market-oriented utility

Are rights of nature radical enough? 97 to humans at the expense of other important considerations related to maintaining human activities and interrelationships within ecological and ethical bounds. Moreover, it relies on conceptual surrogates, such as contingent valuation, that magnify anthropocentric choices, which is analogous to the surrogacy involved in considering the interests of nonhuman nature through the lens of rights, with human representation in tribunals and other forums. As well, monetary valuation of ecosystems increases the risk of eliminating more holistic alternatives, such as multi-criteria decision-making, just as rights of nature risk exclusion of approaches better grounded in human-inclusive ecocentrism, such as focusing on new human responsibilities toward fellow members of Earth’s life systems.

Giving naturehood to people in law Adding the suffix “-hood” to nature indicates that “naturehood” means having a state, condition or quality of nature (Guralnik 1976). In contrast to personhood, naturehood is not a familiar concept in law. Here, giving naturehood to people in law means imbuing law with the ecocentric and relational notion that humans are part of nature, not separate from it. The exoticness of naturehood as a legal term aptly symbolizes how radical and transformational the overall shift from contemporary law, with its boutique subdiscipline of environmental law, to ecological law—replete with features that are still far removed from the legal mainstream— needs to be (Murray 2014; Grear 2019). From a conventional legal perspective, making sense of law that gives primacy to ecological limits, treats humans as a part of nature, orients society toward satisfying true needs rather than unlimited desires, ensures fairness across species and generations and is adaptive so as to keep humans and nonhuman nature resilient in the face of ecological change (Garver 2013: Sbert 2019) is a formidable undertaking. Yet, these are all related to what giving naturehood to people in law means. Berry gave a sense of what naturehood in law might mean when he wrote that in a properly ecocentric jurisprudence, “[e]cology is not part of the law; law is an extension of ecology” (1999, 84). In other words, law should reflect and maintain a human role within the broader community of life that is life-enhancing and respectful of the ecological role of other members of that community. Berry’s insight implies that naturehood points toward a systems-based perspective of how ecosystems that include people can flourish and thrive. Giving naturehood to people in law requires firmly instilling in law the notion that a dynamic, non-linear, systems view of the human-Earth relationship must be part of the foundation of a practicable narrative of long-term flourishing of humans and other living and non-living elements of Earth systems (Berry 1999; Merchant 2003; Capra and Mattei 2015). Others have identified the systems-based features of interconnectedness, immanence, self-organization and complex emergence as central to transformational ecological approaches to law (Cullinan 2011; Murray 2014). Also relevant is the concept of ecological solidarity, integrating “(1) territorial solidarity; (2) social solidarity; [and] (3) interconnexion between humans and nature” (Michelot and Aseeva 2017, 45).

98

Geoffrey Garver

Indigenous legal traditions are a rich source for giving meaning and depth to naturehood in law and ecological law more broadly, because many of them are grounded in ecocentric worldviews and knowledge and attachment to local places and ecologies accumulated over many generations. Borrows notes that Indigenous peoples . . . find and develop law from observations of the physical world around them. When considering law from this source, it is often necessary to understand how the earth maintains functions that benefit us and all other beings. This approach to legal interpretation attempts to develop rules for regulation and conflict resolution from a study of the world’s behavior. (2010, 28) This perspective aligns with what contemporary science is revealing, the importance of respecting ecological limits if human activities are to be part of an enduring, mutually enhancing human-Earth relationship. Yet, ecocentric Indigenous legal traditions transcend mere incorporation of contemporary science by being grounded in worldviews that developed over centuries of observing, learning from, co-evolving with and cultivating sacred kinship relationships with the ecosystems in which humans were embedded. Thus, ecocentric Indigenous law reflects cultural notions of respect, reciprocity and relationship (Kimmerer 2013) that are stunted in dominant contemporary law. These notions are at the heart of common Indigenous customs and traditions, such as the honorable harvest (taking respectfully no more than what is truly needed), deep knowledge and appreciation of place, reverence and respect for elders and wise teachers, slow and patient learning in tune with nature’s rhythms, and a powerful sense of reciprocity and responsibility to other members of the entire community of life (Brown and Garver 2009; Kimmerer 2013; Borrows 2010). Law that truly integrates these ideas would not treat trees, forests and mountains as persons but would rather see them as direct co-creators of the law of “eco-logics” that should guide humans toward ethical, lawful conduct (Anker 2017). Western law has long resisted creating more space for the wisdom of Indigenous legal traditions within a pluralistic understanding of law. European colonists in the Americas and other colonized places largely failed to realize and appreciate that the Indigenous peoples there had functioning legal systems, typically grounded in cultures of human embeddedness in and connection to nature. In colonial eyes, those Indigenous legal traditions were simply too exotic, primitive or unfamiliar for the colonists to recognize and appreciate them as law, and so the colonists deemed it necessary to import their own law via the doctrine of reception (Borrows 2010, 13). For jurists trained in civil law and common law of Western legal systems, fully connecting to ecocentric Indigenous legal traditions as law remains challenging to this day (Borrows 2010; Anker 2017), primarily because of the persistence of the sharp divide between the respective anthropocentric and ecocentric worldviews underlying Western and Indigenous law and the detachment from nature and from place that anthropocentric worldviews have sanctioned.

Are rights of nature radical enough? 99 Drawing heavily from the rich plurality of Indigenous legal traditions in giving definition to ecological law, and the meaning of naturehood, rights a historical wrong by highlighting the hubris and injustice of the doctrine of reception, and acknowledges implicitly that a human-inclusive ecocentric approach to law is better in the long term for both humans and nonhuman nature. The more enduring moral truths regarding the relationship between humans and the Earth and nonhuman nature lie within ecocentric Indigenous worldviews, not in the human-centered traditions of Western law that are so strongly linked to the current ecological crisis. The mounting empirical evidence of the role of humans in the current ecological crisis calls into question the Judeo-Christian and classical moral precepts that undergird Western legal traditions—most prominently human superiority within moral hierarchies such as the Great Chain of Being (Elliott 2005; Capra and Mattei 2015). If the meaning of naturehood is grounded in ecocentrism, then a practical sense of naturehood can be gleaned from strong human attachment to place in contexts that transcend those of Indigenous peoples. The emergent governance systems that some local communities have developed to maintain sustainable human use of elements—or “common-pool resources” (Ostrom 1990, 30)—of their supporting ecosystems provide additional insights into what it means to give naturehood to people in law (Ostrom 1990; Agrawal 2001). Characteristics of these systems include clearly defined boundaries on use of the supporting ecosystems, placebased rules for using the supporting ecosystems, community engagement in the establishment of rules, appropriate monitoring of use of the supporting ecosystem, effective sanctions for breach of the rules, locally adapted conflict resolution, acceptance by other potential lawmakers and nested systems for maintaining the governance regime (Ostrom 1990, 88–101). Underlying all of these characteristics is knowledge of and attachment to place that is deep, intergenerational and enduring, as with many Indigenous legal traditions. As well, and especially in view of increasing urbanization of human society, naturehood and ecological law should be supportive of efforts to keep or put people in touch with nature physically, emotionally and spiritually (Gross 2019). Granting people naturehood in law will undoubtedly open some delicate and difficult issues. For example, modern societies have sought to increase human longevity and combat human diseases as much as possible, in ways that have involved wholesale campaigns against other life forms. Does giving people naturehood in law mean malarial mosquitoes change human responsibilities toward mosquitoes? Associating naturehood or rights of nature with the idea of “letting nature take its course” may be controversial if it means allowing disease to spread, foreclosing aggressive means for keeping people alive and healthy or— in some jurisdictions—granting (or denying) people the right to die with dignity. Moreover, in well-functioning ecosystems, predator-prey relationships follow cycles with negative feedback loops by which predator and prey populations vary in relation to each other (Berryman 1992). Prey populations increase when predator populations decrease, but eventually the increased number of prey induces a growth in the population of predators again. Lack of sufficient prey can cause

100

Geoffrey Garver

predator population decline not only because of lack of food, but also because of depressed reproductivity in the predator species (Frazer et al. 1981). How do species interrelationships like this work for humans in an ecocentric approach to law? Naturehood for people will inevitably require new understandings of the proper balance between humans and other members of Earth’s life systems. Confronting thorny questions may lead to some fits and starts in giving rights to nature or giving naturehood to people, and continually grappling with these questions will improve the coherence of ecological law.

Conclusion: a transitional role for rights of nature Seeing humans as an integral part of nature, and not separate from and superior to it, does not foreclose recognition of the uniqueness of humans among the Earth’s species. Science continually reveals in nonhumans surprising examples of intelligence, purposefulness and other attributes sometimes considered uniquely human. However, humans are the only species whose combined traits enabled them to achieve such global dominance that they have collectively left stratigraphic markers that warrant recognition of a new geologic time period, the Anthropocene (Crutzen and Stoermer 2000; Zalasiewicz et al. 2017), and only humans have the capacity for foresight and collective intention to solve the profound socioecological challenges that are associated with the Anthropocene (Garver 2019). These attributes do not make humans a superior species, but rather give them a profound responsibility to take individual and collective care not to do the myriad things that are technically possible yet ecologically disastrous or morally unjust. At this historical juncture, rights of nature can serve as a powerful corrective to deeply entrenched perspectives about the relationship between human and nonhuman life and the Earth. As they increasingly come into the limelight, rights of nature “are symbolically and politically powerful” (Boyd 2017, xxxiii). They stand for a strong desire to go beyond the limited reach of environmental law by moving toward ecological law—law defined by deeper appreciation of ecological limits and notions of interhuman, interspecies and intergenerational justice (Garver 2013). Recognition of rights of nature in local, national and global arenas signals politically that this shift toward ecological law is starting to gather steam. The long game, however, should be about addressing the deep entrenchment in law and other normative domains of worldviews that no longer make sense in light of what both traditional Indigenous knowledge and modern science reveal about what enhances and what impedes a harmonious human-Earth relationship (Capra and Mattei 2015; Burdon and Williams 2016). A true shift to ecological law requires this new form of enlightenment. From an anthropocentric viewpoint, especially for people who have grown accustomed to modern conveniences with severe ecological consequences that are mostly broadly diffused, cumulative and hidden, returning to a more ecocentric worldview can seem oppressive and full of pain and sacrifice: no more vacations in far-off places, meat-rich diets, carfriendly suburbs, ecologically damaging status goods and so on. Yet, the positive

Are rights of nature radical enough? 101 side of this conversion is rich with possibilities for low-impact human enrichment, flourishing and joy. The awe and wonder of truly attaching to one’s place in the world, of living and appreciating an ethically coherent life in true harmony with nature, have no price.

Note 1 This chapter benefitted greatly from the thoughtful and generous comments of Kirsten Anker and Peter D. Burdon on drafts of the chapter. 2 Payne v. Kassab, 312 A.2d 86, 94 (Pa. Commw. Ct. 1973), aff’d, 361 A.2d 263 (Pa. 1976).

References Agrawal, A. 2001. “Common Property Institutions and Sustainable Governance of Resources.” World Development 29, no. 10: 1649–1672. Anker, K. 2017. “Law as Forest: Eco-Logic, Stories and Spirits in Indigenous Jurisprudence.” Law Text Culture 21: 191–213. Argyrou, A. and H. Hummels. 2019. “Legal Personality and Economic Livelihood of the Whanganui River: A Call for Community Entrepreneurship.” Water International 44, no. 6–7: 752–768. Babcock, H. 2016. “A Brook with Legal Rights: The Rights of Nature in Court.” Ecology Law Quarterly 43, no. 1: 1–52. Berry, T. 1999. The Great Work: Our Way Into the Future. New York: Three Rivers Press. Berryman, A.A. 1992. “The Origins and Evolution of Predator-Prey Theory.” Ecology 73, no. 5: 1530–1535. Borrows, J. 2010. Canada’s Indigenous Constitution. Toronto: University of Toronto Press. Boyd, D.R. 2017. The Rights of Nature: A Legal Revolution That Could Save the World. Toronto: ECW Press. Braverman, I. 2018. “Law’s Underdog: A Call for More-than-Human Legalities.” Annual Review of Law and Social Sciences 14: 127–144. Brown, P.G. and G. Garver. 2009. Right Relationship: Building a Whole Earth Economy. San Francisco: Berrett-Koehler Publishers. Brozek, B. 2017. “The Troublesome ‘Person.’” In Legal Personhood: Animals, Artificial Intelligence and the Unborn, edited by V.A.J. Kurki and T. Pietrzykowski, chap 1. Cambridge, UK: Springer. Burdon, P.D. 2015. Earth Jurisprudence: Private Property and the Environment. New York: Routledge. Burdon, P.D. and C. Williams. 2016. “Rights of Nature: A Constructive Analysis” In Research Handbook on Fundamental Concepts of Environmental Law, edited by D. Fisher, chap. 8. Cheltenham, UK: Edward Elgar Publishing. Capra, F. and U. Mattei. 2015. The Ecology of Law: Toward a Legal System in Tune with Nature and Community. San Francisco: Berrett-Koehler Publishers. Chapron, G., Y. Epstein and J. López-Bao. 2019. “A Rights Revolution for Nature.” Science 363, no. 6434: 1392–1383. Costanza, R., R. d’Arge, R. de Groot, S. Farber, M. Grasso, B. Hannon, K. Limburg, S. Naeem, R.V. O’Neill, J. Paruelo, R.G. Raskin, P. Sutton and M. van den Belt. 1997. “The Value of the World’s Ecosystem Services and Natural Capital.” Nature 387: 253–260.

102

Geoffrey Garver

Coyle, M. 2017. “Indigenous Legal Orders in Canada—A Literature Review.” Law Publications 92. Western University. Crutzen, P.J. and E.F. Stoermer. 2000. “The Anthropocene.” Global Change Newsletter 41: 17–18. Cullinan, C. 2011. Wild Law: A Manifesto for Earth Justice, 2nd ed. White River Junction, VT: Chelsea Green. Cussack, M.E. 1993. “Judicial Interpretation of State Constitutional Rights to a Healthful Environment.” Boston College Environmental Affairs Law Review 20, no. 1: 172–201. Daly, H.E. 1996. Beyond Growth. Boston: Beacon Press. Daly, H.E. and J. Farley. 2004. Ecological Economics: Principles and Applications. Washington, DC: Island Press. Dewey, J. 1926. “The Historic Background of Corporate Legal Personality.” Yale Law Journal 35, no. 6: 655–673. ELGA. 2016. “Oslo Manifesto for Ecological Law and Governance. From Environmental Law to Ecological Law: A Call for Re-Framing Law and Governance.” Ecological Law and Governance Association. www.elga.world/oslo-manifesto/. Elliott, H. 2005. Ethics for a Finite World: An Essay Concerning a Sustainable Future. Golden, CO: Fulcrum Publishing. Ellis, E.C. and N. Ramankutty. 2008. “Putting People in the Map: Anthropogenic Biomes of the World.” Frontiers in Ecology and the Environment 6, no. 8: 439–447. Escobar, A. 2010. “Latin America at a Crossroads.” Cultural Studies 2, no. 1: 1–65. Fitz-Henry, E. 2018. “Challenging Corporate ‘Personhood’: Energy Companies and the ‘Rights’ of Non-Humans.” Political and Legal Anthropology Review 41, no. S1: 85–102. Frazer, B.D., N. Gilbert, P.M. Ives and D.A. Raworth. 1981. “Predator Reproduction and the Overall Predator-Prey Relationship.” The Canadian Entomologist 113: 1015–1024. Garver, G. 2013. “The Rule of Ecological Law: The Legal Complement to Degrowth Economics.” Sustainability 5, no. 1: 316–337. Garver, G. 2019a. “Confronting Remote Ownership Problems with Ecological Law.” Vermont Law Review 43, no. 3: 425–454. Garver, G. 2019b. “A Systems-based Tool for Transitioning to Law for a Mutually Enhancing Human-Earth Relationship.” Ecological Economics 157: 165–174. Gindis, D. 2016. “Legal Personhood and the Firm: Avoiding Anthropomorphism and Equivocation.” Journal of Institutional Economics 12, no. 3: 499–513. Grear, A. 2019. “It’s Wrongheaded to Protect Nature with Human-style Rights.” Center for Humans and Nature. www.humansandnature.org/it-is-wrongheaded-to-pro tect-nature-with-human-style-rights. Gross, M. 2019. “Are We Losing Touch with Our World?” Current Biology 29: R265–R268. Guralnik, D.B., ed. 1976. Webster’s New World Dictionary of the American Language. Cleveland, OH: The World Publishing Co. Humphreys, D. 2017. “Rights of Pachamama: The Emergence of an Earth Jurisprudence in the Americas.” Journal of International Relations and Development 20, no. 3: 459–484. Kallis, G., E. Gómez-Baggethun and C. Zografos. 2013. “To Value or Not to Value? That is Not the Question.” Ecological Economics 94: 97–105. Kimmerer, R.W. 2013. Braiding Sweetgrass. Minneapolis: Milkwood Editions. Kurki, V.A.J. 2017. “Why Things Can Hold Rights: Reconceptualizing the Legal Person.” In Legal Personhood: Animals, Artificial Intelligence and the Unborn, edited by V.A.J. Kurki and T. Pietrzykowski, chap. 5. Cambridge, UK: Springer. Lalander, R. 2015. “Rights of Nature and the Indigenous Peoples in Bolivia and Ecuador: A Straitjacket for Progressive Development Politics?” Iberoamerican Journal of Development Studies 3, no. 2: 148–173.

Are rights of nature radical enough? 103 Martinez-Alier, J., G. Munda and J. O’Neill. 1998. “Weak Comparability of Values as a Foundation for Ecological Economics.” Ecological Economics 26: 277–286. Merchant, C. 2003. Reinventing Eden: The Fate of Nature in Western Culture. New York: Routledge. Michelot, A. and A. Aseeva. 2017. “From Ecosystem Services to Ecological Solidarity.” In The Role of Integrity in the Governance of the Commons, edited by L. Westra, J. Gray and F.T. Gottwald, 37–50. New York: Springer. Mills, A. 2016. “The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today.” McGill Law Journal/Revue de droit de McGill 61, no. 4: 847–884. Murray, J. 2014. “Earth Jurisprudence, Wild Law, Emergent Law: The Emerging Field of Ecology and Law—Part I.” Liverpool Law Review 35: 215–231. Nash, R.F. 1993. The Rights of Nature: A History of Environmental Ethics. Madison, WI: The University of Wisconsin Press. Ngā Tāngata Tiaki. 2020. “Ngā Tāngata Tiaki o Whanganui website, Frequently Asked Questions.” www.ngatangatatiaki.co.nz/for-your-information/faqs/. Ostrom, E. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York: Cambridge University Press. Pollman, E. 2011. “Reconceiving Corporate Personhood.” Utah Law Review. 2011, no. 4: 1629–1676. Rühs, N. and A. Jones. 2016. “The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of Nature.” Sustainability 8: 174. Sbert, C. 2019. “El Salvador’s Mining Ban and Mining in Ontario’s Ring of Fire from the Lens of Ecological Law.” Vermont Law Review 43, no. 3: 517–548. Stone, C. 1972. “Should Trees Have Standing? – Toward Legal Rights for Natural Objects.” Southern California Law Review 45: 450–501. Tanasescu, M. 2013. “The Rights of Nature in Ecuador: The Making of an Idea.” International Journal of Environmental Studies 70, no. 6: 846–861. Trendelenburg, A. 1910.” A Contribution to the History of the Word Person.” The Monist 20, no. 3: 336–363. Whittemore, M.E. 2011. “The Problem of Enforcing Nature’s Rights Under Ecuador’s Constitution: Why the 2008 Environmental Amendments Have No Bite.” The Pacific Rim Law & Policy Journal 20, no. 3: 659–691. Youatt, R. 2017. “Personhood and the Rights of Nature: The New Subjects of Contemporary Earth Politics.” International Political Sociology 11: 39–54. Zalasiewicz, J., C.N. Waters, C.P. Summerhayes, A.P. Wolfe, A.D. Barnosky, A. Cearreta, P. Crutzen, E. Ellis, I.J. Fairchild, A. Gałuszka, P. Haff, I. Hajdas, M.J. Head, J.A. Ivar do Sul, C. Jeandel, R. Leinfelder, J.R. McNeill, C. Neal, E. Odada, N. Oreskes, W. Steffen, J. Syvitski, D. Vidas, M. Wagreich and M. Williams. 2017. “The Working Group on the Anthropocene: Summary of Evidence and Interim Recommendations.” Anthropocene 19: 55–60.

7

Ecological jurisprudence and Indigenous relational ontologies Beyond the “ecological Indian”? Kirsten Anker1

Introduction There is a certain synergy between the project of ecological or Earth jurisprudence and Indigenous thought and practice. The paradigm change proposed by ecological jurisprudence in the face of the planetary scale and detrimental impact of some kinds of human activity builds on contemporary scientific knowledge of the integrated and interdependent nature of ecological systems that begs the need to think holistically about governance, to effect an ethical shift from a human-centric legality to one in which nonhumans have intrinsic value, to adopt the goal of the sustainability of those systems or the mutual thriving of its members rather than the dominance of humans and to make human law compatible with the working order of the Earth itself. All these characteristics of ecological jurisprudence also resonate with aspects of what is articulated by many as Indigenous law. In North America and elsewhere, Indigenous law is often said to feature central ideas such as the relatedness of all things and thus a kinship bond between humans and nonhumans (relational ontologies), the animacy of the Earth and the subjectivity of nonhumans and the land being the source of the law (Henderson 2000; Black 2011). Indeed, many exponents of Earth jurisprudence are clear about the influence or attraction of Indigenous philosophies on or for their work. The Gaia Foundation conference of 2001 that coined, with Ecological theologian Thomas Berry, the term “Earth jurisprudence” included many academics and communitydevelopment personnel working with Indigenous peoples around the world, with Berry suggesting that Indigenous peoples and those in remaining wilderness areas might give the rest of us “special guidance in achieving a viable mode of human presence on the planet” (Bell 2003, 77). In his 2002 “manifesto” Wild Law, Cormac Cullinan likewise advocated looking to Indigenous peoples in developing more Earth-centered governance structures for the Anthropocene (2011). The “Law and Governance for the Anthropocene” group that hosted the workshop at the origin of this volume has Indigenous community scholars among its members and consistently includes Indigenous speakers in its seminar series and coursework. It makes sense for ecological lawyers, imagining new ways for the future, to look where ecologically oriented legalities have already been actualized on the ground by Indigenous peoples.

Ecological jurisprudence 105 The mainstreaming of Indigenous knowledge in ecological jurisprudence is also situated within a broader decolonization of the academy (Smith 2012; Battiste 2013) and in parallel to the incorporation of so-called traditional ecological knowledge (TEK) in contemporary resource management (Berkes 1993). In Canada, in particular, the Truth and Reconciliation Commission (TRC)’s singling out of the role of law and the legal system in residential schools and other colonial policies in its 2015 report has lent momentum to nationwide attempts to bring Indigenous perspectives more robustly into the law curriculum. The TRC report asserts that the transformative change of reconciliation requires, among other things, that Indigenous peoples’ own knowledge systems are embraced as an essential part of building a common ground between peoples (Truth and Reconciliation Commission of Canada 2015). And yet I worry that this discourse of integrating Indigenous knowledges sometimes risks an uncomfortable idealization of Indigeneity and playing out a colonial trope. Rather than critiquing the way Indigenous knowledge is presented in specific ecological law or jurisprudence scholarship, this chapter comes out of an exploration of the source of my own discomfort with that risk, of wrestling with the specter of the “noble savage” that I suspected might haunt contemporary invocations of the ecological wisdom of Indigenous peoples. After presenting the ways in which Indigenous relational ontologies resonate with some features of ecological jurisprudence, I turn to a debate in North American ethnobiology about the “myth of the ecological Indian” for guidance in thinking through the intersection between colonial fabulations of Indigenous “others,” Indigenous practices and contemporary political economies. An assessment of this debate, I find, presses those interested in taking Indigenous traditions seriously as valid bodies of knowledge (Deloria 1995, 60) to pay attention not only to the ethnographic detail of Indigenous knowledge played out in time and space, but also to the hidden premises framing their own inquiries. Further, ecological lawyers should appreciate that TEK is rooted in legal orders, making the desired shift not just cognitive but political: the ecological law project must entail relationships on the ground with Indigenous peoples and confront the colonial and neocolonial context for the status of Indigenous law (Pelizzon 2014, 177). Going beyond the “ecological Indian” takes us away from the idea of timeless Indigeneity conserving static nature but not the ecological character of Indigenous law.

Points of synergy between ecological jurisprudence and Indigenous relational ontologies The shift at the heart of ecological jurisprudence is a reaction against the ontology, ethics and values of industrial capitalism that are responsible for the most egregious human impacts on our collective home. Against a view of the nonhuman world as atomistic and mechanistic matter to be mastered by human ingenuity, or a standing resource to be owned and exploited (Merchant 1980), the new paradigm holds that humans are part of “nature,” entangled in reciprocal, symbiotic relationships with it. Early environmentalist figures in the US like John

106

Kirsten Anker

Muir revered wilderness for anti-utilitarian values, as “fountains of life” (1991, 1). Eco-philosopher Aldo Leopold brought the emerging science of ecology to the conservation movement, understanding humans as citizens of the “biotic community” (1949, 204), in which human well-being and the health of animals, plants and soils are intertwined in a state of “mutual and interdependent cooperation” (1933, 635). Berry built on these ideas to argue in The Great Work that we need a jurisprudence that centers the Earth as a whole—and its integrity—rather than purely human interests, one expression of which was his support of rights for living entities or ecosystems (1999, 5). Cullinan’s Wild Law (2011) argued that directing human law toward being “whole-maintaining” for Earth systems requires intimate communion with the web of relationships that make up those systems, within which we are then placed to “‘negotiate’ mutually beneficial terms” (77). All these influential figures in contemporary ecocentric legal theory have acknowledged the profound influence of their encounters with Indigenous peoples (Tucker et al. 2019, 242–244. For Muir’s complicated relationship with the Tlingit, see Henry 2017). In this section, I will canvas some aspects of Indigenous thought and practice that might be reflected in ecological law’s core principles of ecocentricity (the value and interconnectedness of all beings), ecological primacy (ensuring human systems are grounded in ecosystem integrity and planetary boundaries) and ecological justice (equitable access across generations and species) (Sbert 2020), what Berry referred to as a “mutually enhancing human-Earth relationship” (Berry 1999, 4). Perhaps one shared feature of Indigenous thought around the world is that everything is alive, everything has spirit (Little Bear 2000, 38; Bessarab 2008, 32). Whether or not the anthropological label of animism is appropriate (see Deloria et al. 1999, 224; Harvey 2005), Indigenous people often speak of experiencing the Earth as having agency, animated by a primal energy and able to listen, speak and react to humans (Cruikshank 2005; Henderson 2000; Black 2011, 33–35). The vitality, intelligence and volition of plants, animals, rivers and rocks exemplify what anthropologist Irving Hallowell identified as other-thanhuman personhood (Hallowell 1975). A recent statement by the Sapara Nation of the Amazon—champions for the adoption of the “rights of nature” in the Ecuadorian constitution—calls the forest a “great interrelating network of communicating selves. Some of these selves are readily visible to the naked eye, others, like the protectors of the animals, are equally real but more easily seen in dreams and visions” (Castillo et al. 2016, 11). “Personhood” here clearly goes beyond scientifically recognized sentience for some animals, not only by attributing sentience to a far broader range of entities, but in the degrees of agency that they have. In many Indigenous lifeworlds— the experiential world that fuses “what there is and how one can know” (Mills 2016)—animals exist in communities very like human ones; they sing, dance and deliberate, have rituals and law, enter treaties and even intermarry with humans (Stark 2010; Rose 2010). Animals, plants, rocks and winds can be regarded as relatives—or ancestors—and addressed with kinship terms (Bohaker 2006; Posthumus 2018, 49). Through these tropes, the vitality of the Earth is experienced

Ecological jurisprudence 107 through—and as—relationship, an ecosocial dynamic characterized by interdependence and positive reciprocity, and often via the logic of the gift, as each element of life supports others (Nadasdy 2007; Kuokkanen 2006; Kimmerer 2014; Peterson 2013). The ontology of radical interdependence (Mills 2019, 79; Escobar 2018) generates norms of responsibility to give to and sustain these relationships, as well as a range of associated ethical attitudes: respect for all beings (Harvey 2005, xiv), humility as regards the status of humans (Borrows 2016) and gratitude for the gifts one receives (Evering and Longboat 2013). Indeed, knowledge of how to act—for example, according to the logic of reciprocity—emerges as non-positive law from one’s local, lived engagement with “the land” and as part of a longterm adaptive learning process. In this way, some speak of the land being the “source” of the law (Black 2011), or of grounded (Coulthard and Simpson 2016) or “rooted” legality (Mills 2016). One could think of this legality as constituted by modeling human behavior and enterprise on functioning patterns and structures in the world around us (Borrows 2010, 28), or by the need for human law to fit within the dynamics of the local creative order (Mills 2019, 96). Grounded law is, in this way of knowing, a manifestation of the way that ecologies “think,” of their logics (Sheridan and Longboat 2006). Its orientation or striving is toward balance or “harmony” (Johnston 2012), “living well” or flourishing for all beings (Quick and Spartz 2018; Gross 2002). Kyle Whyte’s reading of Leopold’s “land ethic” against a number of Indigenous perspectives finds that, at an abstract level, there is a convergence between them: both would “embrace a view of humans as part of interdependent systems of relationships among diverse beings,” endow humans and other beings with commensurate moral status and agential capacities, whether as relatives or citizens of the Earth community, and recognize a responsibility to care for and maintain their relationships (2015, 3–4). Given the extent of dialogue over decades between Indigenous and non-Indigenous thinkers on this topic, it is not surprising that there should be not so much a convergence as a co-evolution of ways of articulating ecologically oriented law. These features represent, in many ways, the inverse of the characteristics of enlightenment politics and modern economies: individualism, anthropocentrism, dominance of nature and the ontology of separation that they have amplified (Kohn 2018) and thus make Indigenous thought appealing in the drive to shift this paradigm. Nevertheless, there are distinctions—some of which prove divisive in environmental management—that are missed in talking abstractly about shared features such as expansive personhood, respect, interdependence and reciprocity, a point on which the next two sections expand.

The problem with the “ecological Indian” Clearly, much is lost in this blithe summary. I have flattened the differences between peoples as far away as Australia and the Amazon, and extracted generalities out of rich and complex lifeworlds. Such reductionism is likely a potential pitfall in all social science; for groups that lack the amplified voice to project their

108

Kirsten Anker

own self-representations into public discourse, the one-dimensional stereotypes that are thereby courted—here, the “ecological Indian”—can be disempowering; and even putatively positive stereotypes can be detrimental. Taking features of Indigenous thought as an antidote to modern disenchantment, and Indigenous peoples as practicing a utopic relationship with the Earth, has a long pedigree dating back to the “noble savage” and the Greco-Roman mythological Golden Age (Krech 1999, 17). In this section, I use a debate around the “myth of ecological nobility” in the domain of conservation to add nuance to these valid concerns around stereotypes and the romanticization of Indigeneity. However, the debunking efforts are themselves telling, and the problems with the “problem of the ‘ecological Indian’” caution us to check the myths and presuppositions with which we may still be operating. The “noble savage” became a literary trope associated with America’s first peoples and other non-Europeans from the seventeenth-century poetry of John Drydon on forming part of a lament for an original and timeless beatific human condition lost through “civilization”(Smithers 2015, 86). Ter Ellingson argues that the archetype first came to prominence in anthropological circles as a kind of “straw-man”: in the mid-nineteenth century one faction of the Ethnological Society of London used evidence of the apparent pitiful state or ignoble tendencies of “savages” in an effort to debunk the idea that Indigenous peoples represent a state of optimal human development or innocent “natural goodness” and thus tried to undermine the more humanist faction of the Society (Ellingson 2001). The trope then became a foundational ideology for anthropology that lived more in its negation than in its acceptance, an invented myth to be debunked (299). Nevertheless, the more explicitly ecologically oriented claim that Indigenous peoples lived in harmony with nature or were the original environmentalists took root from that time. That the inhabitants of the New World “left no trace” in their environment was an ambivalent credo, of course, and in some hands was used to conclude that they had no rights in the land (Cronon 1983, 56). But Muir and Berry had more sympathetic precursors such as the proto-ecologist William Bartram, who in 1771 described intricate adaptations of Creek, Cherokee and other peoples to their environments (Machet and Larré 2013, §25–28) or George Bird Grinnell (co-founder of the Audubon Society in 1886) and Ernest Seton (cofounder of the Boy Scouts of America in 1910) who advocated the “Indian’s . . . close contact with nature” as a model to be emulated, and their “ability to coexist with nature intelligently” as a “counterpoint to the exploitative American use of . . . resources” (Cornell 1985, 111). According to Shepherd Krech, the archetype of the ecological Indian crystallized in North America in the 1960s when imagery of Indigenous wisdom and deep respect for nature was deployed in environmental campaigns, and political alliances formed between counter-culture and environmental movements and Indigenous rights movements (Krech 1999, 20). More globally, through the 80s and 90s, non-governmental organizations (NGOs) generated generic narratives around relatable attributes of Indigenous knowledge, such as the sacred nature of the forest, often embellishing the ethnographic sources (Brosius 1997). A report

Ecological jurisprudence 109 to the International NGO Conference on Indigenous Peoples and the Land in 1981 captured the stark sense of contrast to modern Western values: “[i]n the world of today there are two systems, two different irreconcilable ‘ways of life.’ The Indian world—collective, communal, human respectful of nature, and wise—and the Western world—greedy, destructive, individualist, and enemy of nature” (cited in Redford 1991). Like the “noble savage” before it, the ecological Indian has been subjected to an extensive campaign of myth-busting, such as in Krech’s controversial monograph The Ecological Indian (1999). Although Krech asserts that first peoples are generally ecologists in the sense of understanding the connected systems of life (22), a heated academic debate has turned on the more narrow question of whether or not Indigenous peoples were actually conservationists (see Harkin and Lewis 2007), through the deliberate maintenance of ecosystem diversity (Hames 2007, 180). Krech documented cases where pre-Columbian peoples drove species to complete or local extinction through overhunting or uncontrolled use of fire or irrigation (1999, see also Diamond 2005). The role of humans in the mass extinction of megafauna in the Pleistocene is disputed (see Kelly and Prasciunas 2007), but more recent examples are less ambiguous, such as the moa and other birds in New Zealand and giant lemurs in Madagascar (Alvard 1994). The literature sometimes contains accounts of what appear to be wasteful practices: for example, Inuit kills of uncountable numbers of caribou in the 1910s, removing only the skin, tongue and spinal sinew (Jenness 1957, 71), or Cree and Chipewyan in the eighteenth century killing more buffalo than they could consume (Hearne cited in Brightman 1993). Other scholars contend that historic conservation is often epiphenomenal; that is, preservation of biodiversity is a function of population density, technological capacity and opportunities or desire for trade, rather than long-term planning (Alvard 1994, 133). If so, argues Raymond Hames, once firearms and increased demand from trade arrive, overharvesting could become a problem (2007, 181). Moreover, rather than see these incidents as anomalies within an Indigenous conservation ethic, some authors argue that it is the spiritual, ecosocial lifeworlds of peoples, even their deep respect for wildlife, that can produce counterconservation outcomes, as defined by Western environmentalism. Where hunting is part of a reciprocal human-animal relationship, the success of the hunt results from the animals’ decision to gift themselves, and requires respect to be shown to the animals (or their spirit master) (Nadasdy 2007); where the proper ceremonies or practices are performed (for example, prayers, offerings, disposal of remains), the resource is infinitely renewable—for some because the animals would reincarnate (Johnson Gottesfeld 1994, 447; Krech 1999, 204). In the Yukon, a contemporary “catch and release” program where smaller fish are returned to the water was seen by elders to insult the fish because it effectively rejected their gift (Washbrook 1996, 21–22). A similar concern for offending the spirit master embroiled Innu and provincial resource managers in a recent dispute over caribou/atiku conservation: the Innu insisted that it was their abandonment of hunting, or hunting disrespectfully, that was causing the atiku to “leave”; the solution is then not to hunt less (the choice pursued through the hunting ban imposed by the government

110

Kirsten Anker

of Newfoundland and Labrador) but to renew the hunt with the proper protocol (Blaser 2016). Brightman concurs that for the Rock Cree in the 1700s, “[i]t was failure to kill all the animals offered that would jeopardize future hunting. . . . To kill all the animals possible . . . is an act of love and gratitude” (1993, 290). He argues, as does Krech, that an ethic of restraint—taking only what you need— or an understanding of finite resources, came from Cree encounters with EuroAmerican resource managers in the nineteenth and twentieth centuries, even if it was incorporated within the existing paradigm of respect owed to the animals (Brightman 1993, 308–309; Krech 1999, 206). Interpretation of these phenomena is much disputed. Accounts of waste or “wanton slaughter” may be taken out of context or misconstrued: apparently abandoned carcasses may be being stored in icy rivers, or meteorological conditions may have made recuperation impossible, for instance (Campbell 2004). Stephen Langdon argues that the prevailing definition of conservation in the debate assumes an oversimplified correlation between harvesting and species populations given the complex and non-linear dynamics of ecosystems; it also requires human action to be explicitly designed to achieve conservation ends in order to count (2002). On the first point, populations can fluctuate wildly in relation to the growth patterns of food sources, or changes in habitat or climate, and “overkill” can be a way of stabilizing them to sustain their availability: in some contexts, it can make sense to think that killing all the animals that present themselves ensures that they come back (7). On the second, researchers may overlook informal mechanisms such as gossip or shaming as a form of regulation (Nadasdy 2005) or be dismissive of spiritual or other beliefs as irrational instead of the result of “theoretical work and pro-active environmental management” (Scott 1996, 71). Indeed, close studies of the broader cultural matrix can show ways in which some rituals, beliefs and narratives provide astute insights into what will support what Langdon refers to as “relational sustainability”—the maintenance of critical life processes in highly dynamic ecologies rather than the preservation of populations in a homeostatic equilibrium of nature (2002, 11). Ironically, debunking the “ecological Indian” on the basis that Indigenous practices are informed by irrational beliefs often falls into a misconception about the beliefs and their functionality—itself a myth about the West’s monopoly on scientific knowledge (Scott 1996)—and leads to assumptions that rational management must be due to outside influences, as Feit argues is the case with Krech’s assessment of Northern Algonquin conservation (2007). Overall, Indigenous stewardship does tend to preserve the integrity of ecological systems (Gadgil et al. 1993; Garnett et al. 2018), including via effective local monitoring that prevents and deters exploitation by outsiders (Sheil et al. 2015), and globally there is a distinct correlation between areas of biodiversity and Indigenous homelands (Gorenflo et al. 2012; Ding et al. 2016). One final concern about the “ecological Indian” is political; that is, the image is purposefully adopted by both Indigenous and non-Indigenous actors because of its rhetorical power, but it can also backfire because it becomes an impossible ideal against which Indigenous peoples are judged as either corrupted or inauthentic (Conklin and Graham 1995, 704). Thus, in cases where Indigenous peoples have

Ecological jurisprudence 111 come into conflict with environmentalists—the Makah whale hunt in Washington state or the dispute between Indigenous Survival International and Greenpeace over sealing are high-profile examples—those opposing them decry a “loss of culture” or flip the stereotype to characterize Indigenous culture as “savage, selfish and harmful” (Smithers 2015, 90). This is all the more so when Indigenous polities make decisions to achieve some kind of economic justice by developing their lands in ways that are depleting or polluting (Smithers 2015). What persists in the story of Indigenous peoples having either “lost” their ecological purity, or “found” a conservation ethic through non-Indigenous environmentalism, is a myth of a timeless, pre-political state of nature. Whether noble or ignoble, these constructions of Indigenous difference come at the expense of attention to the creativity and historical contingency of Indigenous practices and conceptual models on the ground, and sideline ways in which elements of Indigenous culture and politics can be supported by allies to help further biocultural resurgence. Paul Nadasdy argues that the categorization of Indigenous practices as either conservationist or non-conservationist says more about Euro-American or Canadian standards of environmentalism than about the perspectives of Indigenous peoples themselves. In his account of equivocal Kluane support for wolf cull in the Yukon in the 1990s—largely because of their negative impact on caribou and moose populations—that support, together with assertions by the Kluane of the totemic and spiritual significance of wolves, confounded the conservationist spectrum in which either the wolves are sacred and/or persons to whom respect is owed, or they can be shot for utilitarian reasons (Nadasdy 2005, 317–321). Like the rest of humanity, Indigenous peoples make their way in the world as they encounter it, and make their world through the way they engage with it: that may include spirit masters and ecosocial relationalities, as well as complex state bureaucracies, operating within a neocolonial logic that affects their ability to access their lands, and patterns of discourse containing tropes like the ecological Indian. The challenge, as Gregory Smithers puts it, is to give up the satisfying legends and start seeing—and negotiating with—Indigenous peoples as “active political agents working to nurture families, communities, and ecosystems” (2015, 95).

Lessons for ecological law If the ecological law project aspires to develop law and jurisprudence that are adaptive to specific ecologies and supportive of life on Earth, then it should grasp the opportunity to learn from any communities that, like many Indigenous peoples, have accumulated long-term and intricate knowledge of their local ecosystems. As noted earlier, there are several common features of Indigenous legalities that are understood to emerge from that adaptive learning process. The temptation to romanticize some of these features must be resisted: idealized stereotypes replace attention to individual specificities and erase Indigenous voices—and their heterogeneity—in the process; the ecological Indian stereotype, in particular, may reflect European nostalgia for a more simple past or false assumptions about the

112

Kirsten Anker

“state of nature” that set Indigenous peoples up as timeless, and outside of history and politics; the stereotype then becomes a standard against which to judge and undermine Indigenous political agency. There are multiple lessons for ecological lawyers arising from the conservation debate. On the other hand, the focus on conservation that is key for environmentalists may be peripheral for ecological law, and the shift from environmental to ecological law opens space for understanding Indigenous peoples’ role differently. I will make three brief observations. First, the kind of ecological knowledge that is pertinent to planning for ecological law has roots in long-term conscious participation in specific living places, as Cullinan’s idea of the need for intimate “communion” anticipates. Produced and actualized by people in their territories, this knowledge is necessarily partial, provisional and emergent; it is not only world-learning but world-making. As Sarah Hunt puts it, “Indigeneity is not just an idea” (Hunt 2014, 29). Indigenous knowledges then cannot simply be mined for information without embedding them in Indigenous constitutional orders. Zoe Todd stresses the importance of having Indigenous interlocutors present at meetings and conferences “to hold the use of Indigenous stories and laws to account” (2016, 9). This has an obvious political dimension. For example, one concern of Indigenous communities producing TEK maps or codifying hunting law is that if the documents are made available to outsiders, they may be seen to substitute for the need to negotiate or consult with elders, hunters or other knowledge holders directly (Bryan and Wood 2015, 69). Similarly, during a Kanien’kehá:ka (Mohawk) intervention at Quebec’s National Assembly over the Enbridge oil pipeline reversal proposal, the speaker held a Two-Row wampum belt in his hands and framed his concern about damage from the pipeline within the foundational treaty, embodied in the Two-Row, by which his people and the ancestors of some of those present in the Assembly pledged friendship and mutual assistance to one another (Québec National Assembly 2013). The point, as I understand it, was not to confer Mohawk knowledge or information about their position, but to enact the treaty. But another dimension of embedding the turn to Indigenous knowledges in their legal orders relates to what we think knowledge even is. Whyte’s reading of Leopold’s work gives an example of this. In restoring the land around his cabin in Wisconsin, Leopold wrote about learning from the ecology. But, writes Whyte, even though his family members were working at his side, the endeavor appears a solitary one of individual learning rather than “an experience integrating socialization and knowledge production based on communication and storytelling among them” (2015, 9). He contrasts this to writing of Deborah MacGregor, an Anishinaabe activist-scholar who participates in a women’s movement to protect water, which features the contribution of multiple relatives, from family members, elders and ancestors to the water itself, and thus models being a citizen of a biotic community. To return to a map analogy, whereas maps can sometimes be fetishized as objects per se, participatory mapping techniques tend to allow for the process of mapping to be a “space of engagement where social and spatial relations are reconfigured, and where representations of these relations will take a multitude of forms” (Sletto 2012, 14). In short, knowledge is not limited to how it

Ecological jurisprudence 113 is expressed in representational form, but includes how it is learned, enacted and negotiated in situ. Second, the caribou/atiku example from Mario Blaser’s work with the Innu points to the possibility that the contributions of conventional science and Indigenous knowledge to ecological law might not result in convergence at all. Blaser discusses the aspiration that “spaces of engagement” will allow not just the negotiation of action across different lifeworlds—such as that of scientists and those of Indigenous peoples—but a cosmopolitics (following Isabelle Stengers and Bruno Latour): a politics through which a world is brought into existence through the assembly of human and nonhuman (2016, 552). The problem is that some of these participants are not visible—cannot be visible—to some of the others. The split name caribou/atiku indicates that these are not, in fact, the same entities: the first is an assemblage of things like Linnaean taxonomy, frontier folklore, wildlife management and cost-benefit analysis; the second, of things like atanukan (origin stories), hunting with older relatives, sharing meat and the spirit master. The second assemblage is counted by state officials as, at best, a “cultural concern.” Nevertheless, in this example, they become inescapably entangled because of the threat by Innu hunters to thwart the ban on hunting caribou by hunting atiku. Because of the near impossibility of inducing compliance or enforcing the ban, the Innu suggested that allowing hunting via proper atiku protocol, enforced by internal means, might actually better achieve “conservation” aims. This proposal points not to a synergy but a negotiated solution in an entanglement of local and supra-local assemblages. (The proposal was eventually rejected by the Minister.) Now, ecological law is not focused on the goals of conservation as understood in the earlier debate; indeed, the present volume is devoted to elaborating the distance between the “protection” concerns of classic environmental law, with its niche command-and-control instrumentality, and the holistic overhaul of law’s anthropocentric paradigm. The strength of ecological jurisprudence, in taking its cues from the working order of the Earth, is that it is open to understanding Indigenous laws such as reciprocity not in terms of culture, but as an instantiation of a law that prevails for everyone. And it is grounded relations that will inform both “relational sustainability” and “mutual enhancement.” So, if nonhuman personhood is to be more than a useful metaphor for the movement, more than just a strategy to enable action in the courts on behalf of rivers, then bringing Indigenous peoples to the table might mean inviting all their relatives in as well. This brings me to my third reflection that I can only skim here. How are nonIndigenous people to relate to the pantheon of other-than-human persons, especially those not amenable to scientific taxonomies? Some may see this issue in terms of colonial appropriation: do not look to Indigenous folks for your identity dilemmas with respect to the natural world. You “need to find it within [yourselves] and [your] own cultures” (Gail Small, in Mankiller 2011 24). After reading the Supreme Court of Canada’s decision in Ktunaxa Nation v BC (2017, in which the nation contested a ski resort project because it would drive away the Bear spirit), I wondered to an Indigenous friend how the rest of us (non-Ktunaxa) might take such a spirit seriously. She replied simply that the Bear spirit was an

114

Kirsten Anker

internal matter for the Ktunaxa; the job for the rest of us was to give Indigenous law space to be able to take care of the Bear spirit. Nevertheless, our dilemmas are entangled, and our path forward might be too. There is a quip in Cullinan’s Wild Law that facilitating a paradigm shift by involving world leaders in a “ritualised, drug-induced trance”—such as those used by shaman to contact the spirit masters—is appealing (2011, 94). There are serious reasons for thinking that psychotropics like ayahuasca or psilocybin are helpful companions in disrupting the habits of culture or ego, even that they have their own law (Vargas 2017), but those of us in highly technological twenty-first-century societies might at least, as Cullinan urges, try to develop alternative ways of achieving that communion.

Conclusion Ecological jurisprudence is compelled to engage with Indigenous law if it wishes to embrace Earth laws; there are many localized Earth laws, each of them composed of different communities of persons or lifeworlds (Pelizzon 2014, 177). Mythical statements of generic ecological wisdom, however, do a disservice to the complexity and diversity of Indigenous peoples’ lives (Feit 2007, 52), and in this piece I have canvassed some of the issues associated with drawing on Indigenous knowledges without contending with the legal and grounded relational orders from which they come. Certainly, it is problematic to propose a paradigm that includes sentient landscapes or communities of subjects without acknowledging the tireless contributions of Indigenous thinkers and activists along these lines, particularly in the international climate change arena (Todd 2016). Accepting that Indigenous knowledge comes attached to Indigenous peoples and all their relatives might make for messy negotiations at times; it requires acknowledging that sustaining ecological integrity might best be achieved by defending Indigenous self-determination. And it might also urge non-Indigenous peoples to look for ways to forge their own other-than-human relations.

Note 1 Many thanks to Colin Scott, Ivan Vargas Roncancio, Michelle Maloney and Carla Sbert for their valuable comments and to Geoff Garver for his patience. All errors remain my own.

References Alvard, M.S. 1994. “Conservation by Native Peoples: Prey Choice in a Depleted Habitat.” Human Nature 5, no. 2: 127–154. Battiste, M. 2013. Decolonizing Education: Nourishing the Learning Spirit. Saskatoon, SK: Purich Publishing. Bell, M. 2003. “Thomas Berry and an Earth Jurisprudence.” The Trumpeter 19, no. 1: 69–96. Berkes, F. 1993. “Traditional Ecological Knowledge in Perspective.” In Traditional Ecological Knowledge: Concepts and Cases, edited by J.T. Inglis. Ottawa, ON: International Development Research Centre. Berry, T. 1999. The Great Work: Our Way into the Future. New York: Three Rivers Press.

Ecological jurisprudence 115 Bessarab, D. 2008. “Country is Lonely.” In Heartsick for Country: Stories of Love, Spirit and Creation, edited by S. Morgan, T. Mia and B. Kwaymullina. North Fremantle, WA: Fremantle Press. Black, C.F. 2011. The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence. London: Routledge. Blaser, M. 2016. “Is Another Cosmopolitics Possible?” Cultural Anthropology 31, no. 4: 545–570. Bohaker, H. 2006. “‘Nindoodemag’: The Significance of Algonquian Kinship Networks in the Eastern Great Lakes Region, 1600–1701.” The William and Mary Quarterly 63, no. 1: 23–52. Borrows, J. 2010. Canada’s Indigenous Constitution. Toronto: University of Toronto Press. Borrows, L. 2016. “Dabaadendiziwin: Practices of Humility in a Multi-Juridical Legal Landscape.” Windsor Yearbook of Access to Justice 33, no. 1: 149–165. Brightman, R. 1993. Grateful Prey: Rock Cree Human-Animal Relationships. Berkeley: University of California Press. Brosius, J.P. 1997. “Endangered Forest, Endangered People: Environmentalist Representations of Indigenous Knowledge.” Human Ecology 25, no. 1: 47–69. Bryan, J. and D. Wood. 2015. Weaponizing Maps: Indigenous Peoples and Counterinsurgency in the Americas. New York: Guilford Press. Campbell, C. 2004. “A Genealogy of the Concept of ‘Wanton Slaughter’ in Canadian Wildlife Biology.” In Cultivating Arctic Landscapes: Knowing and Managing Animals in the Circumpolar North, edited by D.G. Anderson and M. Nuttall. New York: Berghahn Books. Castillo, M., J. Félix, C. Mazabanda, M. Melo, M. Moreno de los Ríos, R. Narváez, B. Páez and M. Ushi-Gua. 2016. La Cultura Sapara en Peligro ¿El Sueño es Posible? La lucha de un pueblo por su supervivencia frente a la explotación petrolera. Quito: Terra Mater, la Nación Sapara del Ecuador y NAKU. Conklin, B.A. and L.R. Graham. 1995. “The Shifting Middle Ground: Amazonian Indians and Eco-Politics.” American Anthropologist 97, no. 4: 695–710. Cornell, G.L. 1985. “The Influence of Native Americans on Modern Conservationists.” Environmental Review 9, no. 2: 104–117. Coulthard, G. and L.B. Simpson. 2016. “Grounded Normativity/Place-Based Solidarity.” American Quarterly 68, no. 2: 249–255. Cronon, W. 1983. Changes in the Land: Indians, Colonists, and the Ecology of New England. New York: Hill and Wang. Cruikshank, J. 2005. Do Glaciers Listen? Local Knowledge, Colonial Encounters, and Social Imagination. Vancouver, BC: UBC Press. Cullinan, C. 2011. Wild Law: A Manifesto for Earth Justice, 2nd ed. White River Junction, VT: Chelsea Green Publishing. Deloria, B., K. Foehner and S. Scinta. 1999. Spirit and Reason: The Vine Deloria, Jr. Reader. Golden, CO: Fulcrum Publishing. Deloria, V. 1995. Red Earth, White Lies: Native Americans and the Myth of Scientific Fact. New York: Scribner. Diamond, J. 2005. Collapse: How Societies Choose to Fail or Succeed. New York: Penguin Books. Ding, H., P.G. Veit, A. Blackman, E. Gray, K. Reytar, J.-C. Altamirano and B. Hodgdon. 2016. “Climate Benefits, Tenure Costs: The Economic Case for Securing Indigenous Land Rights in the Amazon.” World Resources Institute. https://files.wri.org/s3fs-public/ Climate_Benefits_Tenure_Costs.pdf. Ellingson, T. 2001. The Myth of the Noble Savage. Berkeley: University of California Press.

116

Kirsten Anker

Escobar, A. 2018. Designs for the Pluriverse: Radical Interdependence, Autonomy, and the Making of Worlds. Durham: Duke University Press. Evering, B., and D.R. Longboat. 2013. “An Introduction to Indigenous Environmental Studies: From Principles into Action.” In Contemporary Studies in Environmental and Indigenous Pedagogies: A Curricula of Stories and Place, edited by A. Kulnieks, D.R. Longboat and K. Young. Rotterdam: Sense Publishers. Feit, H. 2007. “Myths of the Ecological Whitemen: Histories, Science, and Rights in North American-Native American Relations.” In Native Americans and the Environment: Perspectives on the Ecological Indian, edited by M.E. Harkin and D.R. Lewis. Lincoln: University of Nebraska Press. Gadgil, M., F. Berkes and C. Folke. 1993. “Indigenous Knowledge for Biodiversity Conservation.” Ambio 22, no. 2/3: 151–156. Garnett, S.T. et al. 2018. “A Spatial Overview of the Global Importance of Indigenous Lands for Conservation.” Nature Sustainability 1: 369–374. Gorenflo, L.J., S. Romaine, R.A. Mittermeier and K. Walker-Painemilla. 2012. “Co-occurrence of Linguistic and Biological Diversity in Biodiversity Hotspots and High Biodiversity Wilderness Areas.” Proceedings of the National Academy of Sciences 109, no. 21: 8032–8037. Gross, L.W. 2002. “Bimaadiziwin, or the ‘Good Life,’ as a Unifying Concept of Anishinaabe Religion.” American Indian Culture and Research Journal 26, no. 1: 15–32. Hallowell, A.I. 1975. “Ojibwa Ontology, Behavior, and World View.” In Teachings from the American Earth: Indian Religion and Philosophy, edited by D. Tedlock and B. Tedlock. New York: Liveright. Hames, R. 2007. “The Ecologically Noble Savage Debate.” Annual Review of Anthropology 36: 177–190. Harkin, M.E., and D.R. Lewis. 2007. Native Americans and the Environment: Perspectives on the Ecological Indian. Lincoln: University of Nebraska Press. Harvey, G. 2005. Animism: Respecting the Living World. Kent Town, SA: Wakefield Press. Henderson, J.S.Y. 2000. “Ayukpachi: Empowering Aboriginal Thought.” In Reclaiming Indigenous Voice and Vision, edited by M. Battiste. Vancouver: UBC Press. Henry, D.L. 2017. Across the Shaman’s River: John Muir, the Tlingit Stronghold, and the Opening of the North. Fairbanks: University of Alaska Press. Hunt, S. 2014. “Ontologies of Indigeneity: The Politics of Embodying a Concept.” Cultural Geographies 21, no. 1: 27–32. Jenness, D. 1957. Dawn in Arctic Alaska. Minneapolis: University of Minnesota Press. Johnson Gottesfeld, L.M. 1994. “Conservation, Territory, and Traditional Beliefs: An Analysis of Gitksan and Wet’suwet’en Subsistence, Northwest British Columbia, Canada.” Human Ecology 22, no. 4: 443–465. Johnston, B. 2012. Living in Harmony: Mino-nawae-indawaewin. Wiarton, ON: Kegedonce Press. Kelly, R. and M. Prasciunas. 2007. “Did the Ancestors of Native Americans Cause Animal Extinctions in Late-Pleistocene North America.” In Native Americans and the Environment: Perspectives on the Ecological Indian, edited by M.E. Harkin and D.R. Lewis. Lincoln: University of Nebraska Press. Kimmerer, R.W. 2014. “Returning the Gift.” Minding Nature 7, no. 2: 18–24. Kohn, E. 2018. “Anthropology as Cosmic Diplomacy: Toward an Ecological Ethics for the Anthropocene.” Unpublished paper. Yale Ethnography and Social Theory Colloquium Series. Yale University. fore.yale.edu/files/Kohn.pdf. Krech, S. 1999. The Ecological Indian: Myth and History. New York: W.W. Norton and Company.

Ecological jurisprudence 117 Kuokkanen, R. 2006. “The Logic of the Gift: Reclaiming Indigenous Peoples’ Philosophies.” In Re-ethnicizing the Minds? Cultural Revival in Contemporary Thought, edited by T. Botz-Bornstein and J. Hengelbrock. New York: Rodopi. Langdon, S. September 2002. “Construing ‘Conservation’: An Example of Conceptual Construction and Application to Yup’ik Cultural Practice.” Unpublished paper. Ninth International Conference on Hunting and Gathering Societies. Edinburgh, SCT. Leopold, A. 1933. Game Management. New York: Charles Scribner’s Sons. Leopold, A. 1949. A Sand County Almanac and Sketches Here and There. New York: Oxford University Press. Little Bear, L. 2000. “Jagged Worldviews Colliding.” In Reclaiming Indigenous Voice and Vision, edited by M. Battiste. Vancouver: UBC Press. Machet, L. and L. Larré. 2013. “William Bartram a-t-il inventé l’Indien écologiste?” Elohi 4: 11–30. Mankiller, W. 2011. Everyday Is a Good Day: Reflections by Contemporary Indigenous Women. Golden, CO: Fulcrum Publishing. Merchant, C. 1980. The Death of Nature: Women, Ecology, and the Scientific Revolution. San Francisco: Harper & Row, Publishers. Mills, A. 2016. “The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today.” McGill Law Journal 61, no. 4: 847–884. Mills, A. 2019. “Miinigowiziwin: All That Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism.” PhD thesis. University of Victoria. Muir, J. 1991. Our National Parks. San Francisco: Sierra Club Books. Nadasdy, P. 2005. “Transcending the Debate over the Ecologically Noble Indian: Indigenous Peoples and Environmentalism.” Ethnohistory 52, no. 2: 291–331. Nadasdy, P. 2007. “The Gift in the Animal: The Ontology of Hunting and Human-Animal Sociality.” American Ethnologist 34, no. 1: 25–43. Pelizzon, A. 2014. “Earth Laws, Rights of Nature and Legal Pluralism.” In Wild Law—In Practice, edited by M. Maloney and P. Burdon. New York: Routledge. Peterson, N. 2013. “On the Persistence of Sharing: Personhood, Asymmetrical Reciprocity, and Demand Sharing in the Indigenous Australian Domestic Moral Economy.” The Australian Journal of Anthropology 24, no. 2: 166–176. Posthumus, D.C. 2018. All My Relatives: Exploring Lakota Ontology, Belief, and Ritual. Lincoln: University of Nebraska Press. Québec National Assembly. 2013. “Commission on Agriculture, Fisheries, Energy and Natural Resources.” Hearings – Mohawk Traditional Council. 42nd leg., 1st sess. 4 December. Quick, J. and J.T. Spartz. 2018. “On the Pursuit of Good Living in Highland Ecuador: Critical Indigenous Discourses of Sumak Kawsay.” Latin American Research Review 53, no. 4: 757–769. Redford, K.H. 1991. “The Ecologically Noble Savage.” Cultural Survival Quarterly 15, no. 1. Rose, D.B. 2010. “Flying Fox: Kin, Keystone, Kontaminant.” Mānoa 22, no. 2: 175–190. Sbert, C. 2020. The Lens of Ecological Law: A Look at Mining. Cheltenham: Edward Elgar Publishing. Scott, C. 1996. “Science for the West, Myth for the Rest? The Case of James Bay Cree Knowledge Construction.” In Naked Science: Anthropological Inquiries into Boundaries, Power and Knowledge, edited by L. Nader. London: Routledge. Sheil, D., M. Boissière and G. Beaudoin. 2015. “Unseen Sentinels: Local Monitoring and Control in Conservation’s Blind Spots.” Ecology and Society 20, no. 2: 39–54. Sheridan, J. and D.R. Longboat. 2006. “The Haudenosaunee Imagination and the Ecology of the Sacred.” Space and Culture 9, no. 4: 365–381.

118

Kirsten Anker

Sletto, B. 2012. “Indigenous Rights, Insurgent Cartographies, and the Promise of Participatory Mapping.” LLILAS Portal 7: 12–15. Smith, L.T. 2012. Decolonizing Methodologies: Research and Indigenous Peoples, 2nd ed. New York: Zed Books. Smithers, G.D. 2015. “Beyond the ‘Ecological Indian’: Environmental Politics and Traditional Ecological Knowledge in Modern North America.” Environmental History 20, no. 1: 83–111. Stark, H.K. 2010. “Respect, Responsibility, and Renewal: The Foundations of Anishinaabe Treaty Making with the United States and Canada.” American Indian Culture and Research Journal 34, no. 2: 145–164. Todd, Z. 2016. “An Indigenous Feminist’s Take on the Ontological Turn: ‘Ontology’ Is Just Another Word for Colonialism.” Journal of Historical Sociology 29, no. 1: 4–22. Truth and Reconciliation Commission of Canada. 2015. “Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada.” http://nctr.ca/assets/reports/Final%20Reports/Executive_Summary_ English_Web.pdf. Tucker, M.E., J. Grim and A. Angyal. 2019. Thomas Berry: A Biography. New York: Columbia University Press. Vargas Roncancio, I.D. 2017. “Plants and the Law: Vegetal Ontologies and the Rights of Nature. A Perspective from Latin America.” Australian Feminist Law Journal 43, no. 1: 67–87. Washbrook, K. 1996. “Negotiating the Nature of Nature: A Cultural Models Approach to Meaning, Motivation and Cooperative Resource Management in the Yukon.” M.A. Thesis. University of British Columbia. Whyte, K. 2015. “How Similar Are Indigenous North American and Leopoldian Environmental Ethics?” In Revisiting Aldo Leopold’s Land Ethic: Emerging Cultures of Sustainability, edited by T. Trusty and W. Forbes. Texas: Austin University Press.

8

Conjuring sentient beings and relations in the law Rights of nature and a comparative praxis of legal cosmologies in Latin America1 Iván Darío Vargas Roncancio

Introduction Recent norms and judicial decisions on the Rights of Nature (RON) place life at the center of legal discourse in Latin America (Martínez and Acosta 2017). This “legal revolution” (Boyd 2017) thus purports to upend the paradigm of solely human legal subjectivity in recognizing the personhood of nature. Nevertheless, the RON approach seems to depend on an assumption that the form of law is primarily linguistic and propositional. In this way, it reveals another critical assumption: that law is a system of norms made by humans to regulate human conduct in relation to an externally existing natural world, thereby insisting on a separation between law and life processes. This chapter argues that recognizing nature as a legal person and subject of rights falls short if law is understood as a matter of human language only and nature is understood as an adequate conception of cosmological interdependencies between “all that exists” (Escobar 2018). The thesis of law as language seems to reinforce a much-contested rift between mind and body, culture and nature, among other boundary-making notions at the root of modern thought and practice (Descola 2013). In what sense, then, could conjuring other-than-human beings as agents of legal meaning, rather than mere recipients of state-sanctioned rights, transform what we mean by law and RON in Latin America?2 This chapter probes this question in three steps. First, it discusses a relational ontology of law based on the principle of radical interdependence of all that exists (Escobar 2018; Mills 2019), then explores how this approach may challenge understandings of RON premised on an ontology of separation or fragmentation of the living.3 As a way to encounter radical interdependencies in law, the third part discusses a methodology to harness RON’s potentials to heal socio-ecological relations4 concealed by a theory of “law as language” (Anker 2017, 208). The chapter concludes that repairing5 these relations through the law involves the crucial speculative step of rethinking our ontological commitments to an all-too-human law to hold space open for another legal imagination and practice (Stone 1972. See Pelizzon and Gagliano 2015).

Relational ontologies in legal thought The principle of “radical interdependence” suggests that entities do not precede the relationships that comprise them (Escobar 2018). In fact, all existents, whether

120

Iván Darío Vargas Roncancio

minerals, animals, plants, human or rivers, co-emerge relationally. From discrete entities to interdependencies, the implications of this “remarkable reversal” (Viveiros de Castro 2014, 39) for legal theory and practice are profound. This section argues that the law can be imagined as a way of life and thus embraces Anker’s radical proposal to consider “what it is to take forests, mountains, and rivers as law” (2017, 194) or as more-than human language (Kohn 2013). A theory and practice of law based upon this principle, namely a relational legal ontology, could leverage much-needed socio-ecological transformations in Latin America.6 Law as meshwork Anthropologist Tim Ingold defines a way of life as the trajectory of movement and growth of all beings. Every being is instantiated in the world “as a path of movement along a way of life” (2011, 4) and these paths or lines form a tapestry of co-emergent lifeways that he calls a “meshwork” (2011, 63). To further clarify this notion, Ingold contrasts the meshwork with the idea of “network,” which represents the interconnection between preexistent entities in space. He notes that what is commonly known as the web of life, that is, the material relationships between organisms in an ecological community, is not a “network of connected points but a meshwork of interwoven lines” in a particular place (2011, 63). For example, winding rivers, growing plants, moving animals and humans, and even legal propositions are all ways of life or trajectories of growth and movement relentlessly emerging together. The notion of a way of life then blurs the dividing lines between life as the domain of biological phenomena and law as the domain of social meaning in Western metaphysics.7 Depicting ways of life and movement rather than substances, Indigenous concepts of the self in Amazonia further illustrate this relational ontology. In Amazonia, animals, plants, mountains and rivers, among other beings, are endowed with a form of interiority or soul with attributes “identical to those of humans, such as reflexive consciousness, intentionality, affective life, and respect for ethical principles” (Descola 2013, 14).8 In this region, the world is not intrinsically organized through the stable categories of nature and culture since all beings (human and not) share a common interiority concealed underneath the mask of their own bodies (Descola 2013). This theory of the self as multiple “natures” or bodies sharing a common interiority or “culture” across different kinds of beings affords quite a different understanding of the law as something beyond cultural or human meaning. For Indigenous communities in Southwestern Colombia, legal protocols come into being through ritual and everyday relations between animals, plants, spirits and humans mediated by the taita (often a traditional political authority), or the shaman (medicine and spiritual person).9 Applied in instances ranging from ritual procedures to research contracts and from prior consultation between the state and local authorities to the allocation of justice in the community itself, legal meaning in these protocols is the emergent effect of inter-being engagements rather than the will of the human expressed through the vehicle of language.10 This legal cosmology imagines the law as a meshwork, and

Conjuring sentient beings and relations 121 challenges “Western” legal theory on at least two fronts. First, it expands the arc of legal subjectivity to include humans and more-than-human beings as ways of life or movement rather than settled bodies with pre-designed limits. Strathern claims that, although the modern conception of the (natural or corporate) individual as the archetypal legal person prevents the recognition of relationships as legal subjects, both relationships and legal subjects “are embodied in persons (human and not) subject to political-ritual protocols and public attention” and so can be equivalent (2005, 13). An ontological commitment to relations rather than substances has a special bearing in concrete scenarios of adjudication where legal redress requires politically contentious demarcations of socio-ecosystems (See Colombian Constitutional Court, Decision T-622/2016). Second, this relational principle exceeds or destabilizes the dualistic categories that structure legal thinking from the ground up in modern law. For example, in its Decision SU-510/1998, the Colombian Constitutional Court grasped that the non-separation between the plane of spirituality and the plane of the mundane practiced by the Ika (an Indigenous group in Northern Colombia) was part of the general integration of systems (religious, social, legal) in Ika life. Non-separation is expressed by Ika through pagamentos (payments) to Mother Earth—such as through offerings of food, archaeological objects, human hair, semen, blood, cotton-threads, seashells and communal work—and precedes almost any human act from the most ordinary to the most arcane. The Ika were seeking to prevent the proselytizing activities in their communities of an evangelical church, which prohibits pagamentos as superstitious beliefs. The Court upheld an Action of Protection on the basis that proselytism was a threat to local forms of embodied spirituality as an expression of the Ley de Origen (the Original Law of Universal Balance) and therefore to Indigenous rights to cultural diversity. The Court writes that “each thought, act, fact or object, regardless of the field in which it occurs or is found, has a religious meaning that is essential to individual and collective existence” (SU—510/1998, 64). To explain the relational principle, the Court highlights the Ika metaphor of weaving, noting that weaving fabric literally means “weaving the fabric of one’s life,” that is, participating in a way of life that both creates material forms (a piece of fabric) while exceeding these forms to do persons with thoughts and social roles. A relational practice with material and social/ semiotic orientations, weaving “organizes and intertwines the web of social relations where the weaver is also inserted” (SU—510/1998, 44). Thus, it is through weaving that “thoughts are organized and embedded in the universal order that fulfills . . . the Mother’s (Earth) Law” (SU—510/1998, 44). Powerfully, in drawing on Ika cosmologies and material practices of interdependence to uphold the Ika Ley de Origen, the Court itself engaged in a relational practice of weaving between the dualistic categories of law “proper” and Indigenous “custom.” So how, then, does a relational ontology transform our understanding and practice of the RON beyond the recognition of state-granted rights to natural entities? What does it mean to grant rights to relationships instead of substances and/or persons? In the next section, I claim, first, that although it promises to draw on these relational ontologies, RON does so in a limited way. Taken as

122

Iván Darío Vargas Roncancio

legal language to shift the idea of actors, namely as a human-only issue, the RON approach transposes the notion of the individual as a legal subject onto nonhuman fluid agencies without integrating their constitutive interdependencies. Second, and perhaps more crucially, RON’s realpolitik is far removed from the ontological commitment to the nonhuman as a value in itself (Gudynas 2011). Although several Latin American nations recognize nature as a subject of rights via their constitutions,11 legislation12 and case law,13 the RON approach has had the effect of concealing extractivist economies (Weitzner 2017) and the rights that enable these economic practices (i.e. property, entrepreneurial freedom, patents) to the detriment of the rights advanced, for example, the rights “to exist, persist, maintain . . . vital cycles, structure, functions and . . . evolutionary processes” of nature (Constitución Política de la República del Ecuador 2008, Art. 71). Taken as a set of normative propositions to expand the arc of legal subjectivity to rivers, forests and animals, RON actually conceals the lifeways where these rights are embedded, namely a tapestry of territories, Indigenous struggles, forms of legal meaning and economic systems,14 among others. Partly thanks to a deep-seated conception of the law as a human domain separated from and on top of the living relations it aims to regulate, RON forms a seemingly autonomous set of normative propositions in a meshwork of lifeways turned into resources, commodities and environmental services through the circuits of capital (Kosoy and Corbera 2010). As autonomous propositions these rights can be played off—balanced, cost-benefited—against other abstract rights to resources that ignore the lifeways that sustain them both.

Rights of nature and ontologies of separation A game-changing leap in legal theory, the RON approach is still grounded in the ontology of separation between law and life that endorses a conception of law as human language only (Anker 2017). However, RON has the potential to heal socioecological relationships. This section summarizes important challenges this pervasive ontology of separation poses for the implementation of RON and the final section, “Reweaving the legal fabric: A tectonic methodology,” probes how enacting RON as meshwork can become a tool for what Escobar calls the “political activation of relationality” (2018. See Blaser 2013). This activation of relational ontologies can be gleaned from developments in fields as varied as local food and environmental activism, opposition to extractivism, alternative economies . . . and some varieties of urban environmentalism, as well as from emerging transition frameworks such as degrowth in the Global North and “alternatives to development” and Buen Vivir in the Global South. (Escobar 2018, 101) Yet, this activation will need to go hand in hand with ensuing legal transformations not only at the level of positive law but also at the level of legal imagination. A tectonic methodology can be a step forward in this direction.

Conjuring sentient beings and relations 123 The challenges: diffuse nature, collision of cosmologies, discreteness and human mediation Generally speaking, Western legal theory is based upon the primacy of separation between social facts and ecological interdependencies; norms and values; positive law and local customs, among others. And it is precisely because of this separation that it is possible to speak of rights for external natural beings. It is challenging, however, if one takes a rights approach, to say that nature should be in law without radically transforming what we mean both by nature and law. The difficulty of a legal embeddedness of “nature” speaks to the limits of using categories of a legal ontology based on “nature,” and of the concept of rights as trump-style claims conferred by the state on nonhumans, giving them legal meaning that they would otherwise lack. There are a number of conceptual, but also deeply political, challenges in understanding rights of nature: •

•

Diffuse nature: The notion of nature is diffuse because this word may refer to humans and nonhumans, or to nonhuman beings only (Greene, unpublished, 1). Since nature is pervasive in human life and human impacts are pervasive in nature, they cannot be separated. Whereas this argument is common parlance in social theory today (Ulloa 2005), it highlights the need for a new language of interdependence to overcome the primacy of separation and its cascading effects on socio-ecosystems. This diffuse character of nature speaks to the encounters between divergent ways of seeing and worlding, or different cosmologies. Collision of cosmologies: The second challenge refers to what we can call the collision of legal cosmologies (Western and non-Western). The Constitution of Ecuador, for example, recognizes an ample set of rights for natural beings in the following terms: “Art. 71. Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence.”15 The clause undoubtedly expands the circle of rights to a generic nature as an index of a legal paradigm shift in contexts of socio-ecological collapse. Do we need to seek the consistency between this clause and the principle of radical interdependence outside of the legal text (the proposition)? At the propositional level, the clause extends personhood to a generic nature that is immediately equated to the Andean Pachamama. For Quechua-speaking people, however, Pachamama encompasses the Earth/time; the Sun and the Moon; the Goddess of Fertility, and the prime origin of all that exists.16 Does this generic nature 2.0, that is, as legal person,17 encapsulate the interexistences of Pachamama? Does granting rights to the Andean Condor or the Amazonian manatee secure the “ongoingness” of the relations that make these nonhuman selves thrive? And what about the rights of the Andean mountains and the Amazonian rivers where these (non) human people coemerge? This challenge brings us closer to the problem of rendering all existents either as discrete substances or as fluid lifeways or “paths of movement and growth” (Ingold 2011).

124 •

•

Iván Darío Vargas Roncancio Discreteness: This nature is composed of millions of species and “each aspect of nature involves a different (socio-legal) interest” (Greene, 2). As a result, it is impossible to articulate legal claims for each component of nature (see Burdon 2010) which means that a democracy of rights based on discrete beings is impracticable and may lead to an identity politics for nature with challenges similar to those already faced by human groups, such as the state recognition of peasant communities as collective actors beyond markers of ethnicity or race. Here is a telling example to illustrate this point: “one may say an ant has a right to live, to eat, and to protect itself by stinging, but does it have such rights at all times and in all places? If not, what are the ant’s rights relative to other components of nature, especially humans?” (Greene, 2). Therefore, the state recognition of rights refers to the problem of representation and mediation of (human and nonhuman) interests. Human mediation: The nonhuman will always require the mediation of a human guardian because nonhuman beings cannot articulate legal claims before a court of law using a symbolic system of communication (see Kohn 2013). The selfstanding of nonhumans, as it were, is impossible within a legal system based on an idea of law as language only, or a conception of law as a human-only system of meaning.18 However, this difference in modes of communication between human and nonhuman selves should not foreclose “other forms of speaking and listening in the legal field.” The understanding of rights as a human language only performs a particular kind of difference between the human and other lifeways, for example, a mountain. And this kind of difference is specific to the socalled naturalist ontology of modernity that pro-claims the existence of a single common nature shared between different human cultures that have different representations of it (Descola 2013), or different cultural systems.

These challenges raise at least three crucial questions for legal theory. What should be considered as existent for concrete scenarios of adjudication? What kind of people should act on whose behalf? And what is the procedure for adjudicating rights in contexts of pervasive extractivism and war? The preceding assessment calls for a radical transformation of RON’s legal imagination. As RON highlight substantial territorial and cultural claims by Indigenous and peasant communities in Latin America, established critique has underlined the dangers of reducing those rights to a mere icon of “environmental statehood” (Rossotto 2014) in contexts of extractivism. The gap between aspirational legal propositions, on the one hand, and increasing neo-extractivist practices on the other (Svampa 2019; Gudynas 2011), is but a symptom of a deeper rift between the co-emergent logic of life and the mechanistic logic of the law in modern societies (Capra and Mattei 2015).

Reweaving the legal fabric: a tectonic methodology to encounter RON in life By following RON to their underlying lifeworlds and bringing the latter back to the surface of adjudication, in this section, I propose a tectonic reading methodology

Conjuring sentient beings and relations 125 as an invitation to harness RON’s potential to “heal the web of life,” following Colombian anthropologist Arturo Escobar (2018, 2019). Escobar suggests a relational concept of health as the interaction between elements stemming from an entire range of systems (biophysical, economic, political, cultural, environmental, spiritual). According to this holistic perspective, we can also define healing as “an emergent property of the dynamic interaction of the self-organizing networks entailed in these systems, not the result of a few factors” (Escobar 2019, 3). Adopting this perspective, Escobar suggests, “one reaches the conclusion that what needs to be healed is the entire system of relations, not just bodies or ecosystems” (Escobar 2019, 3). With this in mind, the next section fleshes out a methodology to harness these healing possibilities in the law. The methodology should be considered as a mode of asking questions and following legal propositions to their underlying lifeworlds and compares two contrasting RON imaginaries. The first one will be referred to as the state proposition, which describes RON as (state) language to grant legal subjectivity to nature. The second one, the cosmological proposition, imagines RON as a meshwork of lifeways, namely an opportunity for the legal activation of relationality. This section claims that RON as simply language makes nature as network (ontology of separation), whereas RON as lifeway makes cosmos as meshwork (relational ontology). Reading RON as text and as teks A tectonic reading of the law refers to the act of comparing two different, albeit partially connected, enactments of the law. In this context, “proposition” designates a unit of comparison. For the purposes of my argument, the phrases “X has a right to Y” or “X has a responsibility to Y” are examples of such a propositional language. In addition, I use the term “tectonic” in two ways: 1

2

As the underlying plates of the Earth’s crust shifting us inexorably around the globe, crashing into each other. Following RON’s relations all the way to their underlying lifeworlds is first and foremost to encounter the collision of two different modes of worlding through the law, namely separation and interdependence. The act of weaving, for example, a fabric like that woven by the Ika community in Northern Colombia. The Indo-European root of tectonic (teks) means to weave and “to make a wicker or wattle framework for mud walls” (Paternosto 1996, 165). In fact, the words “text,” “texture” and “context” all derive from the word textere, which comes from the same root as teks. “One of the root’s suffix forms, teks-la, is in Latin tela (net, warp, spiderweb), while another of its suffix forms, teks-na, means ‘artisanry’ (weaving or fabricating), which in Greek is tekhne (art, artisanry, skill)” (Paternosto 1996, 165). I use these two meanings analogically.

Once we notice the collision of ontologies represented in these two propositions (state and cosmological), we can now begin to analyze how they are enacted

126

Iván Darío Vargas Roncancio

through the law vis-à-vis the RON. For our purposes, the tectonic analysis refers to the legal proposition both as a text, that is, the words written in a document, as well as teks, that is, the action of weaving a meshwork (spiderweb, tela or fabric) in the Ingoldian sense. This tectonic strategy reveals different modes of worlding through the law. A corollary of the radical ontological difference between separation and interdependence, RON as text would be akin to a state proposition that enacts rights for nature as a delocalized abstract person. At the same time, RON as teks would be akin to a cosmological proposition that enacts rights for a radically situated bundle of socio-ecological relations in particular places vis-à-vis fluid legal meshworks. RON as teks recursively emerges from local ecologies and places with histories that cannot be transplanted into other places without some form of colonial damage. In brief, RON as text makes nature as network, whereas RON as teks makes cosmos as meshwork (see Table 8.1). In Table 8.2, I bring these two RON ontologies together and engage in a comparative analysis between them. In a way, the table attempts to call attention to the mutual incommensurability between these two ontologies (and the different worlds they world) as it follows RON to their constitutive meshworks. The comparative methodology includes the following steps: (1) the selection of propositions a and b (state and cosmological propositions respectively); (2) defining criteria of comparison between them while acknowledging the limits of cross-ontological translation—or the impossibility of ontological equivalence or incommensurability (Munda 2016; Youatt, 2017); (3) determining the fluid “outcomes” of comparison, as well as (4) possible questions for practical scenarios of adjudication. This comparative analysis attempts to encounter legal language differently, that is, as one thread in a living tapestry of human and more-than-human lifeways. This analysis is then an invitation to read the state proposition (e.g. “Nature has rights to . . .”) in the broader context of extra-legal and extra-human “evidence.” In this sense, it aims to probe the possibilities and limits of translation between different legal systems and the worlds they capacitate, and, perhaps more importantly, it is an invitation to consider the nonhuman seriously in legal theory and practice. Although schematic, the analysis suggests that healing relations through the law—or, paraphrasing Escobar (2018), the legal activation of relationality—is also a task of comparison between propositions (and between relations). But it is also a task of following RON’s lifeways as far as they can take us in a particular legal case. Next, I unpack the elements of this comparison. Table 8.1 Collision of cosmologies State proposition

Cosmological proposition

RON as language RON as text Network Nature

RON as lifeways RON as teks Meshwork Cosmos

(2) Criteria of comparison a. What is considered as existent (e.g.): • Nature or Pachamama (partition of beings) • Humans b. Who has rights (or not) • Nature and all its partitions c. What kind of rights does this “who” have? • Right to exist • Right to evolutionary processes d. Who speaks at the court of law? • Humans (person, people, community or nationality) on behalf of nature e. Reading strategy and aim of the proposition • Exegesis under conditions of law as a system of norms • Aim: allocating rights and responsibilities among existents

(Continued)

Pre-analytical assumption: the Rights of Nature may not exist as legal language, and the general notion of “rights” may not have a local equivalent. Strictly speaking, the comparison may not be possible, and this itself can be considered an outcome of the act of comparison. “Rights” to something might be locally articulated as “responsibilities” toward something or toward oneself. (1) Selecting the proposition Conception and application of the law of the origin of the Inga people (Colombia) Wasikamas law (the law of the guardianship of the Earth) is recognized in daily life as the existence of an infinite web of relationships among humans, animals, plants, spirits and minerals. Wasikamas is found in the Inga language as one of the most important sources where the ancestral knowledge of our community is revitalized; this knowledge holds the key to the Andean and Amazonian worlds. Wasikamas is samai (joyful resting) or encounter between beings in time and space.19 (2) Criteria of comparison a. What is considered as existent (e.g.): • Web of relationships • Plants, animals, humans, minerals (continuity of beings) b. Who has (or has not) rights • It is hard to determine based on this propositional form only • More than rights, the law is about the guardianship of the Earth • Existents are interdependent and this interdependence can be subject to rights. Ensuing need to “compose” this local interdependence before adjudicating rights c. What kind of rights does this “who” have? • Those emerging from encountering what is considered as existent • Guardianship of the Earth • Responsibilities rather than rights • Rights (to exist and so on)

Pre-analytical assumption: the Rights of Nature are transparently listed in the law (i.e. a constitution). They “exist” as language.

(1) Selecting the proposition Chapter 7: Rights of Nature Art. 71: Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality will be able to demand the recognition of rights for nature before the public organisms (Constitución Política de la República de Ecuador 2008).

(b) Cosmological proposition

(a) State proposition

Table 8.2 Tectonic reading of the Rights of Nature

Conjuring sentient beings and relations 127

(3) Determining fluid “outcomes” of comparison • Legal ontology of separation • RON as text • Providing a normative horizon for protection for nature (i.e. environmental law) (4) Determining possible questions for practical scenarios of adjudication • Pachamama is the Fertility Goddess who presides over planting and harvesting, embodies mountains, rivers and forests, and causes natural disasters as well. Are nature and Pachamama the same? Are we granting rights to the same kind of person? • Are these persons (nature and Pachamama) partially connected? • Does granting rights to nature with all its partitions harm Pachamama in any way?

(a) State proposition

Table 8.2 (Continued)

d. Who speaks at the court of law • Web of relations where humans are embedded • Humans as bundles of relations speak on “behalf” of those socioecological relations e. Reading strategy and aim of the proposition: • Tectonic: following relations through propositions and experience • Aim: harnessing RON as a tool to recompose “the infinite web of relationships” or healing life in a place (3) Determining fluid “outcomes” of comparison • Legal relational ontology • RON as teks can heal socio-ecological relations • Offering a normative horizon of regeneration of life relations in contexts of extractivism (i.e. Earth law, ecological law) (4) Determining possible questions for practical scenarios of adjudication • What are the challenges and possibilities of considering this story as a source of law? • “How much” ontological uncertainty about the subject of rights is acceptable before engaging in the act of adjudication? • Does the idea of the sacred impose yet another dualism between a transcendental entity and the inherent powers of a creative Earth itself?

(b) Cosmological proposition

128 Iván Darío Vargas Roncancio

Conjuring sentient beings and relations 129 Comparing propositions: what do we make of this analysis? Pre-analytical assumptions The state proposition—RON as a set of normative claims—suggests that the rights of nature exist first and foremost as state language. This premise brings into being a particular kind of legal entity: nature. The cosmological proposition— RON as meshwork—suggests exactly the opposite, that is, RON might not exist as such and even the notion of “rights” might not have a local equivalent where the web of life has been broken and yet the activation of legal redress is still needed. This radical difference could cancel out the “resolution” of a case visà-vis the mere recognition of rights. In fact, the comparison between these two propositions reveals the possibility of their mutual incommensurability given the absence of a common ground of comparison. In other words, what the state proposition sees as rights, the cosmological proposition might see as responsibilities (a sort of legal “perspectivism”: Viveiros de Castro 1998). The underlying tectonic effect—the collision of cosmologies—presents us with an interesting realization, namely there are different ways of conceptualizing what the law is as well as different ways of worlding through the law, and they might not be mutually commensurable. Selecting the proposition In the state proposition, RON is ontologically prior to acts of comparison and adjudication. Hence, these rights exist primarily as language vis-à-vis positive law. Conversely, in the cosmological proposition, RON becomes both (a) an emergent property of cross-ontological comparison or its impossibility (that is, RON is what comes after (dis)agreements between agents of the human and nonhuman kind), as well as (b) what is already recognized as “an infinite web of relationships” in the everyday of a particular collective, for example, the Law of the Guardianship of the Earth of the Inga People. While selecting the state proposition is somewhat straightforward, this is not the case when it comes to deciding about the cosmological proposition. The sources of cosmological propositions can be multiple (storytelling as law, locally codified law, deliberative law, material culture and so on) and the selection mechanism is not extinguished simply by selecting isomorphic equivalences across cultures (i.e. what is the definition of “nature” in modern and non-modern societies?). Is the act of comparison even possible? Is there something akin to “rights” in a local community that allows comparison? Is comparing actually translating? What are the risks of translating across ontologies when it comes to local law, culture and territory? Criteria of comparison Five themes come to mind once we have established the limits and possibilities of cross-ontological comparison (Descola 2013) in contexts of adjudication. First, we

130

Iván Darío Vargas Roncancio

have to determine what is considered as existent, for example, “nature,” “human and more-than-human persons,” “inter-being relations” and “meshworks,” among other existents. Depending on what is rendered as existent, we have to establish who has (or has not) rights to what and what kind of rights does this “who” have. Once we have established what is deemed as existent and the kinds of rights predicated upon them, for example, the regeneration and respect for reproductive cycles, we will then need to establish who will be considered as a legitimate spokesperson for the rights-holder. And this question is not only about legal representation in the context of adjudication, but also about learning the local protocols of representation outside of the court. These protocols could involve careful and respectful engagement with locally appropriate decision-making protocols with different kinds of beings. The fourth step would then be to determine the proposition’s reading strategy and aims. In general, we imagine two general kinds of reading strategies, namely exegesis under conditions of law as a system of positive norms, and tectonics—in the double sense of encountering the collision of ontologies and following the socio-material relations of rights—under conditions of law as meshwork. The first strategy (exegesis) leads to the allocation of rights among predetermined existents, while the second (tectonics) harnesses RON’s capacities to heal relations in flux and becoming (ways of life). Exegesis and tectonics are both important and complementary strategies, which means that comparing them is not a zerosum game. How can the law heal relations? Following the cosmological proposition, the law can heal relations by cultivating and stimulating their conditions of emergence in a particular place. In this context, the word “healing” refers to the holistic regeneration—to the extent possible—of the fabric of dynamic and self-organizing interactions between ways of life (i.e. minerals, plants, humans, animals, spirits, legal propositions) that make up the meshwork of a particular place. More than allocating rights between existents, the cosmological proposition aims at articulating a kind of law that can become a tool to regenerate (reweave) socio-ecological relationships that make up a place (spiritual payments, ecological corridors, seed diversity). And this requires a kind of legal imagination and language where beings are not only considered subjects with rights, but also law-producing selves. This is what we have called the legal activation (or healing) of relationality. Determining fluid outcomes of comparison and possible questions for practical scenarios of adjudication Both the state proposition and the cosmological proposition open up a shared horizon of environmental protection. Where RON as text provides a normative horizon for the protection of “nature,” RON as teks offers a normative horizon for the regeneration and “ongoingness” (Haraway 2016) of life relations in contexts of extractivism (i.e. the principal source of harm). Again, they are partially connected. Although the state proposition weaves Pachamama and nature together, this begs the question of whether nature and Pachamama are the same kind of

Conjuring sentient beings and relations 131 entities. Are we granting rights to the same kind of subjects? On the other hand, the cosmological proposition opens the critical question of how far can we go with ontological uncertainty when it comes to deciding who is a “subject” of rights and what is an “object” of protection. Is this sort of ontological undecidability acceptable in practical contexts of adjudication? These questions will remain open for the time being. Suffice it to say that this methodology is as much about learning to ask questions as it is about learning to weave RON’s relational field for a particular case involving unsettled existents such as nature and Pachamama.

Conclusion: healing socio-ecological relations through the law This chapter has offered a few thoughts on two different projects. The first, RON as text, is based upon the ontological assumption that the real is divided into nature and culture and other cascading dichotomies. This ontology leads to seeing what positive law calls “nature” as a legal person, often at the expense of the relations behind the mask of legal subjectivity (Vargas Roncancio 2020). The second, RON as teks, is based upon another pre-analytical assumption, which, following Escobar, I have termed the “Principle of Radical Interdependence”. Translated into a legal principle, this cosmological premise suggests that the project of the law is also about discerning (legal) meaning in relationships beyond the human, language and the state (Davies 2017), and I have proposed a methodology to encounter such relations in the law: tectonic reading. The current coupling of textual RON with the persistence of the development/ extractivist project in Latin America demands yet another braiding move, namely to imagine economic relations from the vantage point of Indigenous cosmologies of interdependence (see Atleo 2011). A potential future step for this line of inquiry would be to explore an animist framework for economic practice as part of a postextractivist agenda for this region. Understanding law as meshwork and economics as reciprocity is an integral part of a relational imagination and practice to heal the web of life and nurture its radical ongoingness.

Notes 1 Special thanks to Kirsten Anker for her encouragement, enriching conversations and insightful comments and suggestions at various stages of this chapter. Also, thanks to Laura Gilbert, Daniel Ruiz, Joshua Sterlin and Herman Greene for reading an earlier version of the chapter. Thanks to Nicolás Kosoy, Eduardo Kohn, Geoffrey Garver and Peter G. Brown for ongoing conversations around these issues, and to L4E project manager Dina Spigelski for her ongoing support. This research was supported and funded by the Leadership for the Ecozoic (L4E) project at McGill University. Last but not least, thanks to Colciencias in Colombia. 2 Similar argument in Cullinan (2011); law and language in Anker (2014); language and other sign modalities beyond the human in Kohn (2013). 3 Drawing from Escobar (2018), as used here the word ontology refers to how people, human and not, enact different worlds or “reals” rather than different cultural representations of a singular and common reality. Ontology also refers to the normative attributes of these world-making practices and the limits and possibilities of comparing and translating between them.

132 4 5 6 7 8 9 10 11 12 13

14 15 16 17 18 19

Iván Darío Vargas Roncancio

Law as a healing practice in Swaim (2006). Escobar (2018) suggests the notion of “design” as a political-ontological praxis of repair. For the ontological dimensions of law see Vermeylen (2017), Davies (2017). Drawing from Ingold (2011), I am making an analytical distinction between life—a cell, for example—and living as the capacity to move or act, which life shares with nonlife such as rocks, mountains and rivers, among others. Also see De la Cadena (2015), Kohn (2013), and Viveiros de Castro (1998). Conversation with A.A. former education advisor in Colombia, and Yagé practitioner. Southern Colombia. Field notes, 2019. Conversation with David Rodríguez, biologist and plant scientist working on the preservation of wild populations of medicinal-ritual plants in Southern Colombia. Field notes, 2019. Constitución Política de la República del Ecuador [Ecuador], 20 October 2008, available at: https://www.refworld.org/docid/3dbd62fd2.html [accessed 27 September 2020]. Ley de Derechos de la Madre Tierra No. 071, 21, [Bolivia], Dec. 2010, available at: https://www.bivica.org/file/view/id/2370 [accessed 27 September 2020]. Corte Constitucional de Colombia, Decision C-035 2016; Corte Constitucional de Colombia, Decision T-622 2016, all available at: https://www.corteconstitucional. gov.co/relatoria/ [accessed 27 September 2020]; Corte Suprema de Justicia de Colombia, Decision STC 4360–2018, available at: https://observatoriop10.cepal.org/ es/jurisprudencia/sentencia-la-corte-suprema-justicia-colombia-stc-4360-2018 [accessed 27 September 2020]. On the relationship between ecological law and degrowth economica see Garver (2013). See Constitución Política de la República del Ecuador [Ecuador], 20 October 2008, available at: https://www.refworld.org/docid/3dbd62fd2.html [accessed 27 September 2020]. See Academia Mayor de la Lengua Quechua. 1995. Diccionario Quechua-españolQuechua Oosqo, Perú: Municipalidad de Oosqo, available at https://searchworks. stanford.edu/view/3150735 [accessed 27 September 2020]. Critique of personhood in Vargas Roncancio (2020). On decision-making in plants, Gagliano (2015). On more-than-human legalities, Braverman (2018). Taita Inga Hernando Chindoy, Personal communication, Feb. 2020.

References Academia Mayor de la Lengua Quechua. 1995. Diccionario Quechua-español-Quechua. Oosqo, Perú: Municipalidad de Oosqo. Anker, K. 2014. Declarations of Interdependence: A Legal Pluralist Approach to Indigenous Rights. New York: Routledge. Anker, K. 2017. “Law As . . . Forest: Eco-logic, Stories and Spirits in Indigenous Jurisprudence.” Law Text Culture 21: 191–213. Atleo, R. 2011. Principles of Tsawalk: An Indigenous Approach to Global Crisis. Vancouver: University of British Columbia Press. Blaser, M. 2013. “Ontological Conflicts and the Stories of Peoples in Spite of Europe: Towards a Conversation on Political Ontology.” Current Anthropology 54, no. 5: 547–568. Boyd, D. 2017. The Rights of Nature: A Legal Revolution That Could Save the World. Toronto: ECW Press. Braverman, I. 2018. “Law’s Underdog: A Call for More-Than-Human Legalities.” The Annual Review of Law and Social Science 14: 127–144. Burdon, P. 2010. “The Rights of Nature: Reconsidered.” Australian Humanities Review 49:69.

Conjuring sentient beings and relations 133 Capra, F. and U. Mattei. 2015. The Ecology of Law: Toward a Legal System in Tune with Nature and Community. San Francisco: Berrett-Koehler Publishers. Cullinan, C. 2011. Wild Law: A Manifesto for Earth Justice, 2nd ed. White River Junction, VT: Chelsea Green. Davies, M. 2017. Law Unlimited: Materialism, Pluralism, and Legal Theory. New York: Routledge. De la Cadena, M. 2015. Earth Beings: Ecologies of Practice across Andean Worlds. Durham, NC: Duke University Press. Descola, P. 2013. Beyond Nature and Culture. Chicago: University of Chicago Press. Escobar, A. 2018. Designs for the Pluriverse: Radical Interdependence, Autonomy and the Making of Worlds. Durham, NC: Duke University Press. Escobar, A. 2019. “Healing the Web of Life: On the Meaning of Environmental and Health Equity.” International Journal of Public Health 64: 3–4. Gagliano, M. 2015. “In a Green Frame of Mind: Perspectives on the Behavioural Ecology and Cognitive Nature of Plants.” AoB Plants 7: plu075. Garver, G. 2013. “The Rule of Ecological Law: The Legal Complement to Degrowth Economics.” Sustainability 5: 316–337. Greene, H. “Thomas Berry’s Radical Proposals for the Reform of Jurisprudence based on the Rights of Nature.” Unpublished book manuscript. Gudynas, E. 2011. “Más allá del nuevo extractivismo: transiciones sostenibles y alternativas al desarrollo.” In El Desarrollo en Cuestión. Reflexiones desde América Latina, edited by F. Wanderley. La Paz: Oxfam y CIDES. Haraway, D. 2016. Staying with the Trouble: Making Kin in the Chthulucene. Durham, NC: Duke University Press. Ingold, T. 2011. Being Alive: Essays on Movement, Knowledge, and Description. New York: Routledge. Kohn, E. 2013. How Forests Think: Toward an Anthropology Beyond the Human. Berkeley, CA: University of California Press. Kosoy, N. and E. Corbera. 2010. “Payment for Ecosystem Services as Commodity Fetishism.” Ecological Economics 69, no. 6: 1228–1236. Martínez, E. and A. Acosta. 2017. “Los Derechos de la Naturaleza como puerta de entrada a otro mundo posible.” Revista Dereito e Práxis 4, no. 8. Mills, A. 2019. “Miinigowiziwin: All That Has Been Given for Living Well Together. One Vision of Anishinaabe Constitutionalism.” Ph.D. thesis, University of Victoria. Munda, G. 2016. “Beyond Welfare Economics: Some Methodological Issues.” Journal of Economic Methodology 26, no. 2: 185–202. Paternosto, C. 1996. The Stone and the Thread: Andean Roots of Abstract Art. Austin, TX: University of Texas Press. Pelizzon, A. and M. Gagliano. 2015. “The Sentience of Plants: Animal Rights and Rights of Nature Intersecting?” Australian Animal Protection Law Journal 11: 5–13. Rossotto, I.A.A. 2014. The Political Ecology of the State: The Basis and the Evolution of Environmental Statehood. London: Routledge. Stone, C. 1972. “Should Trees have Standing? Toward Legal Rights for the Natural Objects.” Southern California Law Review 45: 450–501. Strathern, M. 2005. Kinship, Law and the Unexpected. Relavites Are Always a Surprise. Cambridge: Cambridge University Press. Svampa, M. 2019. Las Fronteras del Neoextractivismo en America Latina. Guadalajara, MX: CALAS-Maria Sibylla Merian Center for Advanced Latin American Studies. Swaim, S. 2006. “Law as a Healing Profession: The Comprehensive Law Movement.” Research Paper Series 05/06 # 12. New York Law School Clinical Research Institute.

134

Iván Darío Vargas Roncancio

Ulloa, A. 2005. The Ecological Native: Indigenous People’s Movements and EcoGovernmentality in Colombia. New York: Routledge. Vargas Roncancio, I.D. 2020. “Forest on Trial: Towards a Relational Theory of Legal Agency for Transitions into the Ecozoic.” In Liberty and the Ecological Crisis: Freedom on a Finite Planet, edited by C. Orr, K. Kish and B. Jennings. New York: Routledge. Vermeylen, S. 2017. “Materiality and the Ontological Turn in the Anthropocene: Establishing a Dialogue Between Law, Anthropology and Eco-philosophy.” In Environmental Law and Governance for the Anthropocene, edited by L. Kótze (pp. 137–162). Oxford: Oxford University Press. Viveiros de Castro, E. 1998. “Cosmological Diexis and Amerindian Perspectivism.” Journal of the Royal Anthropological Institute 4, no. 3: 469–489. Viveiros de Castro, E. 2014. Cannibal Metaphysics. Minneapolis: Univocal. Weitzner, V. 2017. “Nosotros Somos Estado: Contested Legalities in Decision-making about Extractives Affecting Ancestral Territories in Colombia.” Third World Quarterly 38, no. 5: 1198–1214. Youatt, R. 2017. “Personhood and the Rights of Nature: The New Subjects of Contemporary Earth Politics.” International Political Sociology 11: 39–54.

Legal documents Constitución Política de la República del Ecuador [Ecuador], 20 October 2008. Corte Constitucional de Colombia, Decision SU-510 1998 [Colombia], 18 Septiembre 1998. Corte Constitucional de Colombia, Decision C-035 2016 [Colombia], 8 February 2016. Corte Constitucional de Colombia, Decision T-622 2016 [Colombia], 10 November 2016. Corte Suprema de Justicia de Colombia, Decision STC 4360–2018 [Colombia], 5 April 2018. Ley de Derechos de la Madre Tierra No. 071, 21, [Bolivia], 21 December 2010.

9

Needs-based constraints in an ecological law transition Carla Sbert

Introduction Ecological law is an emerging approach to law aimed at supporting a transition from current ecologically unsustainable and inequitable societies to ones that are ecologically just—for humans and other species, today and into the future (e.g. Bosselmann 2006, 2008; Cullinan 2011; Garver 2013). These goals are in line with the degrowth proposition that achieving well-being for all people requires economies centered on sufficiency and respect of ecological limits. By one estimate, this will require rich nations to reduce their ecological footprint by 40 to 50% (Hickel 2019). In this chapter, I explore the case for an ecological law needsbased constraints approach to contribute to a reduction in consumption and a transition toward sufficiency. First, I show why ecological law theory supports constraining economic activities not only within ecological limits, but also within the bounds of what is required to satisfy human needs (or “needs,” for short), as opposed to wants. Second, I briefly consider conceptualizations of needs that could inform the fuller theorization of an ecological law needs-based constraints approach. Third, I note examples of how needs are treated in existing laws, including instances where they are the basis for constraining behavior. Finally, I explore what an ecological law needs-based constraints approach could include. This is a tentative proposal that does not reckon with objections to the concept of needs and its role in policy, such as Ivan Illich’s condemnation of basic needs as “the most insidious legacy left by development” and one which “reshaped the minds and senses of homo sapiens into those of homo miserabilis” (1992, 99). In other words, he objects to “needs” as a concept to which he and others impute the erosion of autonomy and self-sufficiency, and the creation of dependency and consumerism. Whether such pitfalls should preclude or influence the consideration of needs in ecological law is a question for further study. The same applies to the consideration of whether there is a role for ecological law in ensuring the satisfaction of needs indirectly, by deconstructing legal “enclosures” and institutions that impede self-sufficiency, and by creating or recreating arrangements in which people can autonomously satisfy their needs (Kothari et al. 2019; Alexander 2015). These are critical aspects of a complete discussion of an ecological

136

Carla Sbert

law approach to human needs, but they are beyond the scope of this short chapter, which focuses only on needs as the basis for ecological law constraints on economic activities.

Needs, ecological law and degrowth Ecological law is being developed as an alternative to currently prevailing law, including environmental law, because of the latter’s fundamental limitations— being anthropocentric, embedded in the economic growth paradigm at the root of the ecological crisis, fragmented and mitigatory rather than preventive (e.g. Boyd 2004; M’Gonigle and Takeda 2013; ELGA 2016)—and its ensuing failure to avert the ecological crisis. Based primarily on Bosselmann (2006, 2008), Cullinan (2011) and Garver (2013), I define ecological law as “an emerging approach to law aimed at constraining economic activity within ecological limits, restoring and preserving ecological integrity, and building and supporting an ecologically just society” (Sbert 2020). This working definition aligns with Garver’s characterization of ecological law as “the legal complement of degrowth economics” (2013). Degrowth is an early twenty-first-century slogan-turned-movement and “multi-disciplinary academic paradigm” centered on the rejection of economic growth as a societal priority and the search for alternative, ecologically sustainable ways of living (Demaria et al. 2013; Weiss and Cattaneo 2017; Research and Degrowth 2019). Ecological law proponents might not all subscribe to degrowth, but ensuring that economic systems respect ecological limits is a cornerstone of both ecological law and degrowth (ELGA 2016; Research and Degrowth 2019). Both seek to address the soaring consumption of materials and energy beyond the biocapacity of Earth’s ecosystems by a growing population of (increasingly affluent) humans (Steffen et al. 2015). The question of needs is intimately related to that of limits (e.g. Demaria et al. 2019, 435) and thus is central to both degrowth and ecological law. Some degrowth proponents have discussed needs and related concepts such as well-being, self-limitation and sufficiency (e.g. Muraca 2012; Demaria et al. 2013, 2019; D’Alisa et al. 2015; Weiss and Cattaneo 2017; Kerschner et al. 2018; Muraca and Neuber 2018; Samerski 2016; Vetter 2018; Kothari et al. 2019). In contrast, discussion of needs is practically absent from ecological law scholarship. In two previous examinations of mining from the perspective of ecological law, I concluded, among other things, that an ecological law approach to mining would be needs based (Sbert 2015, 2020). This conclusion raises the questions I explore here, of whether a needs-based constraints approach would be appropriate for ecological law more generally, beyond mining, and if so, what it would involve. Three core principles of ecological law can illuminate the role of needs in ecological law: ecocentrism, ecological primacy and ecological justice.1 Ecocentrism requires “recognizing and respecting the value of all beings and the interconnectedness among them, equitably promoting the interests of human and nonhuman members of the Earth community” (Sbert 2020). The satisfaction of its own needs

Needs-based constraints in ecological law 137 is an obvious interest of every being. This principle thus requires that ecological laws recognize the capability of all beings to pursue the satisfaction of their own needs, and the responsibility of humans to respect and avoid compromising this pursuit. The second principle, ecological primacy calls for “ensuring that social and economic behavior and systems are ecologically bound, respecting planetary boundaries” (Sbert 2020; Rockström et al. 2009). Maintaining and restoring ecological integrity is integral to the principle of ecological primacy and a core tenet of ecological law (e.g. ELGA 2016).2 Given the prevalence of consumerism and wealth accumulation, ecological primacy initially (today and into the near future) means reducing the scale and scope of certain economic activities and eliminating others, in keeping with ecological limits. Focusing on whether a human activity is geared toward satisfying human needs, rather than wants, could guide difficult determinations about what activities should be constrained or barred. The third principle is Klaus Bosselmann’s concept of ecological justice, which adds interspecies equity to the sustainability tenets of human intragenerational and intergenerational equity (2006, 2008). It involves “ensuring equitable access to the Earth’s sustaining capacity for present and future generations of humans and other beings, and avoiding the inequitable allocation of environmental harms” (Sbert 2020). Ecological justice requires that, in using any components of the Earth and of nonhuman living beings, any given generation of humans should avoid compromising the ecological integrity of the ecosystem of which it is part. It also requires that today’s and future humans halt the degradation of socialecological systems, restore ecosystems that have been degraded and eliminate inequality. This third principle is related to needs at a more fundamental level than the others because, being about equitably accessing sustenance, ecological justice is ultimately about needs. It implies all human and nonhuman members of the Earth community meeting their needs today and into the future. This differs from the Brundtland definition of sustainable development—“development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (1987, chap. 2, par. 1, 41) in two ways. First, as Bosselmann argues, it adds concern for other species to the concerns for current and future human generations (2008, 79), and second, it does not refer to “development.” The first difference frees ecological justice of anthropocentrism, and the second, of the assumption of linear progress via economic growth implied in development. Ecological justice also involves limits on wealth (Garver 2013). Accumulation is unfair because, as Peter Brown writes, “[f]rom the commonwealth-of-life perspective, most ‘natural resources’ are already being used, either by persons or by members of nonhuman species” (2004, 17). Taking only what one needs— embracing sufficiency—is thus at the heart of ecological law. At the same time, it is clear that even if all humans take only what they need in the least damaging manner, a human population that continues to expand will inevitably surpass ecological limits.

138

Carla Sbert

What are human needs? The question of what humans need to survive and flourish goes back at least to Aristotle and is subject to a vast body of scholarship (e.g. Maslow 1943; Illich 1978, 1992; Sen 1985; Max-Neef et al. 1989; Doyal and Gough 1991; Wiggins 1998; Nussbaum 2000; Reader 2005; Assiter and Noonan 2007; O’Neill 2011). Here I sketch a broad picture of the main ideas and questions that arise with respect to needs (including some in degrowth scholarship) and that are relevant in theorizing a needs-based approach for ecological law. There is no single way of conceiving of human needs, and the term is the cause of substantial confusion (Gasper 1996). Ian Gough notes that “many writers, including the authors of the Brundtland Report, refer to needs as though they were self-evident” when “[t]hey are not” (2017, 41). He and others argue, however, that it is possible to identify universal and objective human needs (MaxNeef et al. 1989; Doyal and Gough 1991; Wiggins 1998; Assiter and Noonan 2007; O’Neill 2011). An important distinction scholars make is between needs, and wants or preferences (Gasper 1996, 3–5). Noonan argues that “[t]he essential difference between a need and a want . . . is that deprivations of needs always lead to harm whereas deprivation of wants is only harmful in light of revisable selfinterpretations” (2006, xiv). Different theories describe and group needs under different categories (basic, intrinsic, instrumental, functional and so on). For example, one theory distinguishes between “needs” and “need satisfiers” and proposes a matrix of four “existential needs” expressed as verbs (“being, having, doing, interacting”) and nine “axiological needs” expressed as nouns (“subsistence, protection, affection, understanding, participation, idleness, creation, identity and freedom”) through which individuals or groups may identify their “need satisfiers” (Max-Neef et al. 1989, 33). To illustrate: physical health and mental health are need satisfiers at the intersection of the axiological category of “subsistence” and the existential category of “being”; and literature and teachers are need satisfiers at the intersection of the axiological category of “having” and the existential category of “understanding” (33). Another “theory of human need” is structured as a hierarchy of universal goals, basic needs, intermediate needs, satisfiers and societal preconditions (Gough 2017, 42–45). To illustrate: one of two universal goals is “minimally impaired social participation,” under which “physical health” is a basic need, and one of its satisfiers is “adequate nutritional food and water” (43). Conceptualizations of human needs recognize, in one way or another, that human needs imply a minimum level of materials and conditions for survival— such as water, food and shelter—as well as a minimum basis for human flourishing. Some theories emphasize the material dimension of human needs, like the Basic Needs Approach of the 1970s and 1980s, which was aimed at “ensuring that there are sufficient, appropriately distributed basic needs (BN) goods and services to sustain all human lives at a minimally decent level” (Reader 2006, 337, citing Stewart 2006). In contrast, Amartya Sen (1985) and Martha Nussbaum (2000)

Needs-based constraints in ecological law 139 proposed a conceptualization of human well-being based on individual freedoms and functionings, known as the Human Capabilities Approach (HCA).3 Among the reasons why it is important to consider needs, O’Neill highlights that a needs-based approach “captures the nature and seriousness of the ethical obligations that are owed both to the poor in current generations and to future generations” (2011, 39). And as previously discussed, from the perspective of ecological law, needs are also good measures of the just human share of the limited sustaining capacity of the Earth (with the aim of ensuring equitable access among all members of the Earth community today and in the future), and thus a good basis for constraining human activities that overly consume or degrade that capacity. As argued earlier, the constraining dimension of needs flows logically from ecological law’s core principles and ideas. In addition, needs can be interpreted as constraints based on the fact that they are, according to Gough, “satiable,” since “[i]t can be shown that the amount of intermediate needs required to achieve a given level of health and autonomy diminishes as their quantity increases, eventually plateauing” (2017, 46). Needs and sufficiency are intimately linked. Likewise, Breena Holland argues that Nussbaum’s “capability thresholds” should be accompanied by “capability ceilings” (2008), and Tim Jackson notes that “capabilities are bounded on the one hand by the scale of the global population and on the other by the finite ecology of the planet” (2009, 46). A crucial and contentious point is who decides what constitutes a need or is a need satisfier. The Basic Needs Approach relied primarily on experts. Gough proposes identifying need satisfiers through a “dual strategy” that brings together “the codified knowledge of experts and the experiential knowledge of those whose basic needs and daily life world are under consideration” (Doyal and Gough 1991, 141 quoted in 2017, 48, 50). An ecological law needs-based approach will require a process for identifying needs and need satisfiers, perhaps along Gough’s proposal. The process must be participatory, because ecocentrism requires respect and ecological justice requires equitable access, both of which require participation of those affected. In degrowth scholarship, human well-being is the predominant reference used to study alternative paths for society to create ecologically sustainable economies. However, there are arguments for focusing instead more centrally on human needs. The two concepts are related, but—as posited by Doyal and Gough’s “theory of human need”—needs are objective, while well-being is subjective (Koch et al. 2017). In Heat, Greed and Human Need, Gough (2017) offers a detailed proposal for constraining overconsumption based on human needs in order to face the climate emergency and transition to degrowth. More generally, Gabriel and Bond (2019) propose a “distributive justice framework for consumption Degrowth” that “consider[s] need to be the primary criterion for distribution” while “entitlement and desert are secondary, socially constructed criteria that reflect society’s institutionalized acknowledgement of the rights, wants, preferences and efforts of its members” (329). Implementing these proposals will require legal supports that ecological law proponents are well placed to develop.

140

Carla Sbert

As this brief survey shows, the meaning of needs is anything but obvious. Thus, a fully theorized needs-based approach for ecological law should clearly define how needs would be understood and identified, perhaps allowing for a plurality of meanings consistent with the notion that ecological law should be place-based (Garver 2019a). At a minimum, human needs should be understood as those of individuals who are interconnected and embedded within nature, and bounded within ecological limits (ecologically bound needs), and they should be identified through a participatory process. Before discussing what a needs-based constraints approach for ecological law might look like, in the next section I briefly survey references to needs in existing laws.

Examples of needs in existing laws One struggles to find laws that use a conception of needs, requirements or sufficiency to impose obligations or constraints in connection with desired courses of action (although a full-scale study could reveal otherwise). When laws refer to needs, it is usually as the basis of rights or entitlements, not of constraints (although, of course, the rights of each individual are constrained by the rights of others). However, I note a few examples of both here. Several of the rights in the Universal Declaration of Human Rights guarantee the satisfaction of human needs. In particular, “[e]veryone has the right to life, liberty and security of person” (article 3) and “to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services” (article 25 (1)). Also, in 2010 the United Nations recognized the human right to water and sanitation (UNGA 2010). Bolivian laws recognizing the rights of nature make several references to needs. The Rights of Mother Earth Law establishes the obligation of the State to “[d]evelop balanced forms of production and consumption patterns to satisfy the needs of the Bolivian people for Living Well, while safeguarding the regenerative capacities and the integrity of the cycles, processes and vital equilibria of Mother Earth” (Ley de Derechos de la Madre Tierra, Ley No. 071, December 21, 2010, article 8.2) (own translation). The Framework Law for Mother Earth and Integral Development for Living Well includes three principles that address needs. For example, “Harmonious Relation” calls for promoting “a harmonious, dynamic, adaptive and balanced relation between the needs of the Bolivian people and the regenerative capacities of the components and living systems of Mother Earth” (Ley Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien, Ley No. 300, October 15, 2012, articles 4.11–4.13) (own translation). As for laws that set limits on the basis of needs, two wildlife laws in Canada provide clear examples. The Nunavut Wildlife Act incorporates 13 principles of Inuit Qaujimajatuqangit—defined therein as “traditional Inuit values, knowledge, behaviour, perceptions and expectations” (Wildlife Act, SNu 2003, c 26). Among these, the principle “Surattittailimaniq/Hugattittailimanik, also called Iksinnaittailimaniq/Ikhinnaittailimanik . . . means that hunters should hunt only what is

Needs-based constraints in ecological law 141 necessary for their needs and not waste the wildlife they hunt” (Wildlife Act, SNu 2003, c 26, s 8 (i)). Another example in Canada is the Traditional Eeyou Hunting Law, 2009 (Eeyou Indoh-Hoh Weeshou-Wehwun) adopted by the Cree Trappers Association.4 This law establishes exceptions to the required authorization for hunting of certain game, allowing an Eeyou “to hunt for small game or fish in quantities reasonably necessary for his personal and immediate food needs, where and when such game and fish are plentiful” (s 10.2). Similarly, the “right of use” established in the Civil Code of Quebec is based on the needs of its holder. Article 1172 defines it as “the right to temporarily use the property of another and to take the fruits and revenues thereof, to the extent of the needs of the user and the persons living with him or his dependants” (CQLR c CCQ-1991). Finally, “need” is also used in some impact assessment laws that require the proponent to describe the “need for” the proposed project, although this requirement is not necessarily related to human needs. For example, the newly adopted Canadian Impact Assessment Act requires consideration of “the purpose of and need for the designated project” among the factors that the impact assessment of a designated project must take into account (S.C. 2019, c. 28, s 22 (1)). The interim guidance for impact assessment practitioners states that the “‘purpose of” and “need for” the project should be established from the perspective of the project proponent,” and defines the former as “what is to be achieved by carrying out the project, including any objectives the proponent has in carrying out the project” and the latter as “the opportunity that the project is intended to solve or satisfy” (IAAC 2019). Likewise, the US National Environmental Policy Act also requires a statement of purpose and need in an environmental assessment, with these questions relating to how a proposed action will meet the objectives of the proponent agency (42 U.S.C. §4321 et seq.; Mandelker 2010). This short sample shows that human needs are the basis not only of rights, but also of legal constraints on human activities. The next section looks at what a needs-based approach for ecological law might look like.

Toward an ecological law needs-based constraints approach The earlier examination of needs in relation to principles of ecological law shows that needs-based constraints are not only consistent with its theory, but also arguably necessary to fulfill its objectives. The examples of laws referencing needs provide some starting points for imagining laws that would impose needs-based constraints on economic activities. As noted, needs are already recognized as the basis for rights in some international and domestic laws, human rights in particular. If we understand human rights as ecological human rights, bounded by ecological limits (Bosselmann 2008, 129), then the human needs these rights address should be interpreted as both entitlements and limits. For example, an ecological right to water would include the obligation to use no more water than is needed and to avoid contaminating or wasting it.

142

Carla Sbert

Another area of law where one can envision needs-based constraints is environmental assessment. As discussed, assessments of major undertakings and extractive projects usually require the proponent to explain the need for the project. Under ecological law, the focus of this requirement could be shifted from the needs and objectives of the proponent to the satisfaction of human needs. The proponent would be mandated to explain how the project would satisfy needs, and this would be subject to participatory dialogue as a preliminary step before considering the project’s potential impacts. Moreover, new laws could be adopted banning extraction, production, consumption and/or trade that pose a threat to ecosystems with high levels of ecological integrity, except if and to the extent to which the materials, goods or services produced are the sole means to satisfy human needs and biophysical limits are respected, with a precautionary approach. Ecological law could set limits on the types and quantities of goods and services a user can access in a certain time frame or in relation to specific endeavors based on their ecological footprint and contribution to need satisfaction. Under this logic some sectors might be eliminated or dramatically downscaled. For example, an ecological law approach to mining would center on needsbased constraints (Sbert 2015, 2020). Environmental, land use and mining laws do not ask what the minerals to be extracted are for in order for a mine to be approved, but from an ecological law perspective, this is a central question. In order to minimize depletion, and because mineral extraction causes largely irreparable harm to human and nonhuman members of the Earth community, ecological justice and ecological primacy demand a compelling reason to undertake it. Thus, ecological law would allow only new extraction in limited areas and circumstances if the minerals cannot be obtained otherwise and if they are required to satisfy basic human needs. Finally, a needs-based approach for ecological law would also involve limiting, or even prohibiting, activities that promote nonessential consumption, like planned obsolescence or advertising.5 As Löwy (from an eco-socialist perspective) argues: A new society would orient production towards the satisfaction of authentic needs, beginning with those described as “biblical”—water, food, clothing, housing—and basic public services such as health, education, and transport. Authentic needs are clearly distinguished from artificial or fictitious needs induced by a manipulative advertising industry. Advertising is an indispensable dimension of the capitalist market economy but it has no place in a society transitioning to socialism. Here, people’s information on goods and services would be provided by consumer associations. The test for distinguishing authentic from artificial needs, is to see whether they persist after the suppression of advertising. (Löwy 2019, 174) The examples presented earlier of potential ecological law needs-based constraints assume that law can have a substantive role in compelling the reduction

Needs-based constraints in ecological law 143 of material and energy use. This assumption requires nuance. It is questionable from the perspective of green legal theory, which sees laws as part of the marketembedded state apparatus that depends on, and supports, constant growth of extraction, production and consumption (e.g. M’Gonigle 2008, Chapter 12 in this volume). Yet, Michelle Maloney provides evidence of this potential role in her analysis of three Australian examples of state-centered regulation that effectively changed consumption of water, fish and plastic bags by individuals and households (2014). Moreover, the corollaries of the COVID-19 pandemic in affluent societies may perhaps include increased public support for prioritizing essential goods and services, appreciation of sufficiency and intolerance of greed.

Conclusion Limitless extraction, production and consumption of materials and energy to satisfy human needs and wants are fundamental causes of the ecological crisis. A needs-based approach sanctioning limits on economic activities is consistent with ecological law theory and not completely unprecedented in current laws. Further steps in developing one include clearly defining what “needs” means for its purposes, and a process to determine what counts as needs and need satisfiers. Constraining economic behavior based on human needs will be an important part of the transition from current law (environmental and other) to ecological law, and from accumulation to sufficiency.

Notes 1 These three interconnected principles of ecological law form the lens of ecological law, an analytical tool I have proposed for contrasting existing laws with ecological law (Sbert 2020). 2 But see Garver (2019b), for the argument that ecological integrity should have a humaninclusive definition. 3 Sen avoids listing universal capabilities, while Nussbaum identifies ten Central Human Functional Capabilities. The HCA has strongly influenced development work, including by inspiring the United Nations Human Development Index “created to emphasize that people and their capabilities should be the ultimate criteria for assessing the development of a country, not economic growth alone” (United Nations Development Program n.d. “Human Development Index (HDI).” http://hdr.undp.org/en/content/ human-development-index-hdi). 4 This law is a written version of existing customary law created as “an exercise of the inherent right of self-government.” Cree Trappers Association. 2010. “Traditional Eeyou Hunting Law: Frequently Asked Questions (FAQ).” http//:creetrappers.ca, 3. 5 For an illuminating account of the manufacturing of consumer culture, see Maloney (2014, 24, 46–48, 59–62).

References Alexander, S. 2015. Sufficiency Economy: Enough, for Everyone, Forever. Melbourne: The Simplicity Institute. Assiter, A. and J. Noonan. 2007. “Human Needs: A Realist Perspective.” Journal of Critical Realism 6, no. 2: 173–198.

144

Carla Sbert

Bosselmann, K. 2006. “Ecological Justice and Law.” In Environmental Law for Sustainability: A Reader, edited by B.J. Richardson and S. Wood, chap. 5. Portland: Hart Publishing. Bosselmann, K. 2008. The Principle of Sustainability: Transforming Law and Governance. Aldershot: Ashgate. Boyd, D.R. 2004. “Sustainability Law: (R)Evolutionary Directions for the Future of Environmental Law. (Future Directions?).” Journal of Environmental Law & Practice 14: 357–385. Brown, P.G. 2004. “Are There Any Natural Resources?” Politics and the Life Sciences 23, no. 1: 12–21. Brundtland Commission. 1987. “Report of the World Commission on Environment and Development: Our Common Future.” Annex to UN Doc A/42/427 1987. www.undocuments.net/wced-ocf.htm. Cullinan, C. 2011. Wild Law: A Manifesto for Earth Justice. White River Junction, VT: Chelsea Green Pub. D’Alisa, G., F. Demaria and G. Kallis, eds. 2015. Degrowth: A Vocabulary for a New Era. Abingdon: Routledge. Demaria, F., G. Kallis and K. Bakker. 2019. “Geographies of Degrowth: Nowtopias, Resurgences and the Decolonization of Imaginaries and Places.” ENE: Nature and Space 2, no. 3: 431–450. Demaria, F., F. Schneider, F. Sekulova and J. Martinez-Alier. 2013. “What is Degrowth? From an Activist Slogan to a Social Movement.” Environmental Values 22: 191–215. Doyal, L. and I. Gough. 1991. A Theory of Human Need. Basingstoke: Macmillan. ELGA. 2016. “Oslo Manifesto for Ecological Law and Governance. From Environmental Law to Ecological Law: A Call for Re-Framing Law and Governance.” Ecological Law and Governance Association. www.elga.world/oslo-manifesto/. Gabriel, C. and C. Bond. 2019. “Need, Entitlement and Desert: A Distributive Justice Framework for Consumption Degrowth.” Ecological Economics 156: 327–336. Garver, G. 2013. “The Rule of Ecological Law: The Legal Complement to Degrowth Economics.” Sustainability 5: 316–337. Garver, G. 2019a. “Confronting Remote Ownership Problems with Ecological Law.” Vermont Law Review 43, no. 3: 425–454. Garver, G. 2019b. “A Systems-based Tool for Transitioning to Law for a Mutually Enhancing Human-Earth Relationship.” Ecological Economics 157: 165–174. Gasper, D. 1996. “Needs and Basic Needs. A Clarification of Meanings, Levels and Different Streams of Work.” Working Paper Series no. 210. The Hague: Institute of Social Studies. Gough, I. 2017. Heat, Greed and Human Need: Climate Change, Capitalism and Sustainable Wellbeing. Cheltenham: Edward Elgar Publishing. Hickel, J. 2019. “Is It Possible to Achieve a Good Life for All within Planetary Boundaries?” Third World Quarterly 40, no. 1: 18–35. https://doi.org/10.1080/01436597.2018. 1535895. Holland, B. 2008. “Ecology and the Limits of Justice: Establishing Capability Ceilings in Nussbaum’s Capability Approach.” Journal of Human Development 9: 401–425. Illich, I. 1978. Toward a History of Needs. New York: Pantheon Books. Illich, I. 1992. “Needs.” In The Development Dictionary: A Guide to Knowledge as Power, edited by W. Sachs, 88–101. London and New Jersey: Zed Books. Impact Assessment Agency of Canada (IAAC). 2019. “Guide to Preparing an Initial Project Description and a Detailed Project Description.” www.canada.ca/en/impact-assessmentagency/services/policy-guidance/practitioners-guide-impact-assessment-act/guidepreparing-project-description-detailed-project-description.html.

Needs-based constraints in ecological law 145 Jackson, T. 2009. Prosperity without Growth: Economics for a Finite Planet. London: Earthscan Publications Ltd. Kerschner, C., P. Wächter, L. Nierling and M. Ehlers. 2018. “Degrowth and Technology: Towards Feasible, Viable, Appropriate and Convivial Imaginaries.” Journal of Cleaner Production 1971: 1619–1636. Koch, M., H. Buch-Hansen and M. Fritz. 2017. “Shifting Priorities in Degrowth Research: An Argument for the Centrality of Human Needs.” Ecological Economics 138: 74–81. Kothari, A., A. Salleh, A. Escobar, F. Demaria and A. Acosta, eds. 2019. Pluriverse: A Post-Development Dictionary. New Delhi: Tulika Books. Löwy, M. 2019. “Eco-Socialism.” In Pluriverse: A Post-Development Dictionary, edited by A. Kothari, A. Salleh, A. Escobar, F. Demaria and A. Acosta, 172–175. New Delhi: Tulika Books. Maloney, M. 2014. “The Role of Regulation in Reducing Consumption by Individuals and Households in Industrialised Nations.” PhD diss., Griffith University. Mandelker, D.R. 2010. “The National Environmental Policy Act: A Review of Its Experience and Problems.” Journal of Law and Policy 32: 293–312. Maslow, H. 1943. “ATheory of Human Motivation.” Psychological Review 50, no. 4: 370–396. Max-Neef, M., A. Elizalde and M. Hopenhayn. 1989. “Human Scale Development.” Development Dialogue 1: 5–80. M’Gonigle, M. 2008. “Green Legal Theory: A New Approach to the Concept of Environmental Law.” Okologisches Wirtschaften 4: 34–38. M’Gonigle, M. and L. Takeda. 2013. “The Liberal Limits of Environmental Law: A Green Legal Critique.” Pace Environmental Law Review 30: 1004–1115. Muraca, B. 2012. “Towards a Fair Degrowth-Society: Justice and the Right to a ‘Good Life’ beyond Growth.” Futures 44, no. 6: 535–545. Muraca, B. and F. Neuber. 2018. “Viable and Convivial Technologies: Considerations on Climate Engineering from a Degrowth Perspective.” Journal of Cleaner Production 197: 1810–1822. Noonan, J. 2006. Democratic Society and Human Needs. Montreal: McGill-Queen’s University Press. Nussbaum, M. 2000. Women and Human Development: The Capabilities Approach. New York: Cambridge University Press. O’Neill, J. 2011. “The Overshadowing of Needs.” In Sustainable Development, edited by F. Rauschmayer, I. Omann and J. Frühmann, chap. 2. London: Routledge. Reader, S., ed. 2005. The Philosophy of Need. Royal Institute of Philosophy Supplement 57. Cambridge: Cambridge University Press. Reader, S. 2006. “Does a Basic Needs Approach Need Capabilities?” The Journal of Political Philosophy 14, no. 3: 337–350. Research and Degrowth. 2019. “Definition.” https://degrowth.org/definition-2/. Rockström, J., W. Steffen, K. Noone, Å. Persson, F.S. III Chapin, E. Lambin, T.M. Lenton, M. Scheffer, C. Folke, H.J. Schellnhuber, B. Nykvist, C.A. de Wit, T. Hughes, S. van der Leeuw, H. Rodhe, S. Sörlin, P.K. Snyder, R. Costanza, U. Svedin, M. Falkenmark, L. Karlberg, R.W. Corell, V.J. Fabry, J. Hansen, B. Walker, D. Liverman, K. Richardson, P. Crutzen and J. Foley. 2009. “Planetary Boundaries: Exploring the Safe Operating Space for Humanity.” Ecology and Society 14, no. 2: 32–65. Samerski, S. 2016. “Tools for Degrowth? Ivan Illich’s Critique of Technology Revisited.” Journal of Cleaner Production 197: 1637–1646. Sbert, C. 2015. “Re-imagining Mining: The Earth Charter as a Guide for Ecological Mining Reform.” IUCN Academy of Environmental Law E-Journal 6: 66–95.

146

Carla Sbert

Sbert, C. 2020. The Lens of Ecological Law: A Look at Mining. Cheltenham: Edward Elgar Publishing. Sen, A.K. 1985. Commodities and Capabilities. Amsterdam: North Holland. Steffen, W., K. Richardson, J. Rockström, S.E. Cornell, I. Fetzer, E.M. Bennett, R. Biggs, S.R. Carpenter, W. de Vries, C.A. de Wit, C. Folke, D. Gerten, J. Heinke, G.M. Mace, L.M. Persson, V. Ramanathan, B. Reyers and S. Sörlin. 2015. “The Trajectory of the Anthropocene: The Great Acceleration.” The Anthropocene Review 1: 1–18. Stewart, F. 2006. “The Basic Needs Approach.” In The Elgar Companion to Development Studies, edited by D.A. Clark, chap. 4. Cheltenham: Edward Elgar Publishing. United Nations General Assembly (UNGA). 2010. “Resolution 64/292, adopted July 28, 2010.” www.un.org/waterforlifedecade/human_right_to_water.shtml. Vetter, A. 2018. “The Matrix of Convivial Technology: Assessing Technologies for Degrowth.” Journal of Cleaner Production 197: 1778–1786. Weiss, M. and C. Cattaneo. 2017. “Degrowth—Taking Stock and Reviewing an Emerging Academic Paradigm.” Ecological Economics 137: 220–230. Wiggins, D., ed. 1998. Needs, Values, Truth. Oxford: Clarendon Press.

10 The potential of the trusteeship theory for Canadian public law and environmental governance* Stéphanie Roy**,†

Introduction In 1970, when the international community was beginning to demonstrate awareness of the human impact on its natural environment,1 Joseph L. Sax published one of the most-cited articles of all time (Shapiro and Pearse 2012, 1490), “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” as a reaction to the increasing number of lawsuits brought against governmental agencies that are supposed to protect the public interest and natural resources in the United States (Sax 1970, 473–474). Sax believed the increase in lawsuits was in part due to inconsistency in legislative responses and administrative actions. The public trust doctrine is the legal approach Sax suggested as the most likely to obtain effective court intervention related to environmental problems (Sax 1970, 473–474). Other similar concepts redefining government obligations toward the environment have emerged in the legal and political literature proposing solutions to government inaction to protect the environment, including parens patriae (Estey 1972, 576; Kenner 2005, 100–101), stewardship (Halley and Sotousek 2012; Barritt 2014), nature’s trust (Wood 2013) and trusteeship (Brown Weiss and Ferry 1989). These concepts and theories all rely on the central proposal of imposing fiduciary duties on the government and consider the natural environment to be the common patrimony or property of citizens. The government would therefore have to act in the best interest of its current citizens and future generations. In her 2013 book, Nature’s Trust: Environmental Law for a New Ecological Age, Professor Mary C. Wood argues in favor of infusing current environmental law with trust principles in order to make it more protective. Wood explains that current governmental decision-making based on discretion has proven ineffective for environmental protection (Wood 2013, 15–16). Discretion-based decision-making allows the executive—that is, government agencies—to consider single monetary interests and short-term considerations when it exercises delegated rule-making, issues technical determinations of a project’s impacts or chooses to enforce regulations (Wood 2013, 68–69). By comparison, imposing a fiduciary obligation would force the government to act in the best interest of citizens and future generations and to protect the natural assets on which their future depends, in addition to making the government more accountable (Wood 2013, 138–139, 203–204).

148

Stéphanie Roy

Professor Klaus Bosselmann suggested the adoption of trusteeship as an overarching framework to establish better international environmental governance in his 2015 book Earth Governance: Trusteeship of the Global Commons. For Bosselmann, “political leaders and the [state-centered] structure of international governance appear incapable of responding to [an emerging ecological crisis] in an effective way: there is not only a democratic deficit but an ecological deficit as well” (2015, 1). Bosselmann therefore creates a governance model that would reconcile democracy with ecological well-being. The task of this book, he explains, is to “help establish a culture of democracy powerful enough to achieve sustainable societies” (2015, 21–23). This task includes separating markets from the commons by reshaping state sovereignty, empowering governments to define the functions and legitimacy of the market and restructuring democracy to protect the commons. The solution to the ecological predicament is to establish a value-based democracy that should not be confined to nation-states, but rather should be shared internationally to achieve “earth governance” of this universal concern (Bosselmann 2015, 29–30). In this chapter, I argue that the trusteeship theory, as conceived by Wood and Bosselmann, provides a promising model of fiduciary governance of the environment, building on the experience with, and critiques of, the public trust doctrine. Such a model would allow for a rapid paradigm shift toward ecological responsibility in public governance by using tools and concepts that are already known to jurists. This is especially true in Canada, given the similarities between the concepts of “public interest,” “accountability,” “impartiality” and “fairness” that are used in Canadian public law and in the trusteeship literature. It thus sets out a path for deriving from the actual “command and control” approach that dominates our political system (Reid and Nsoh 2016). The government—in the Canadian model of parliamentary sovereignty— already acts in the public interest, already is accountable to Parliament and already must be loyal and equitable to its citizens according to responsibilities set by public law (Hogg 2007, 1:12-2). However, this model of governmental responsibility is lacking an understanding that the goal of preserving nature is not done only to avoid damages. Rather, governments should take on the greater responsibility to let nature thrive and to recognize the interconnectedness of humanity and nature. This interconnectedness should inform our obligations toward future generations of humans to ensure their survival by preserving the Earth’s ecosystems upon which we depend (Reid and Nsoh 2016, 4, 15). The trusteeship theory comprises the ethical foundation to translate human responsibility toward nature and their interconnectedness into administrative action to address the mounting ecological challenges of the Anthropocene. This first section of this chapter sets out the foundation principles of the trusteeship theory and distinguishes it from the American public trust doctrine. The second section explores Wood and Bosselmann’s views on the theory, and the third section explains the potential of the theory to transform Canadian environmental governance given the compatibility of its public law with fiduciary principles.

Trusteeship theory for Canadian public law 149

Trusteeship theory Foundational principles Developing a legal doctrine based on trust is not a new idea. In addition to the public trust doctrine already applied in the United States and in other common law jurisdictions (Blumm and Guthrie 2011, 745), other countries have adopted public trust-inspired legislation,2 and many authors have suggested mechanisms or governance frameworks based on trust at the international level (Stone 1994; Barnes 2001; Sand 2004, 55–56; Sa 2008; Benvenisti 2013, 295–333). The trusteeship theory set out by Mary C. Wood and Klaus Bosselmann, considered from a different perspective, would allow the State to adopt a holistic approach to nature management and to consider the interests of future generations and nature itself when making decisions (Wood 2013, 191; Bosselmann 2015, 39–40). One of the goals of this theory is to increase the duties of government toward the environment and future generations, and therefore remedy the lack of accountability of government representatives and the insufficient number of long-term measures that consider future generations’ environmental interests. The duties in question are those that traditionally exist in a fiduciary relationship, more specifically that exist under a trust,3 as the name of the theory suggests. A fiduciary relationship is one where the holder “has rights and powers he or she must exercise for the benefit of” another person (Yogis and Cotter 2009, 111). The fiduciary has a duty of loyalty, which means that she must not benefit from the position she holds unless explicitly authorized by the other person. Other fiduciary obligations derive from this duty of loyalty (Gillese 2014, 10). Where fiduciary duties protect relationships that are of importance to the public—for instance, solicitor-client, guardianward, director-company and principal-agent relationships—the trust-beneficiary relationship is the most stringent because the trustee has control over a property that belongs to another, the beneficiary (Gillese 2014, 10–11). The trustee will consequently be held to the highest fiduciary standards. Another element that distinguishes the trust from other fiduciary relationships is that “a trust relationship cannot exist without trust property” (Gillese 2014, 11). The traditional fiduciary duties a trustee must respect in addition to the duty of loyalty are: the obligation to perform personally, the duty to invest the trust assets, the obligation to act impartially, the duty to account and the duty to provide information (Gillese 2014, 130, 155). If governments were to apply these duties, it would obviously translate into types of action other than a private trust. As an example of these other causes of action, it could force a government to take positive actions toward the environment, not only conservative ones, as the government would have the duty to make nature thrive (that is, to “invest trust assets”)(Bosselmann 2015, 193). The trusteeship also allows citizens to undertake lawsuits against it in case of omission, in ways similar to the public trust doctrine currently applied in the United States (Wood 2013, 221). This raises questions of how these trusteeship approaches to environmental law can be meaningfully differentiated from the public trust doctrine. In fact, the public trust doctrine is a type

150

Stéphanie Roy

of “trusteeship in action,” but the trusteeship theory considered in this chapter has broader application, as is suggested by Wood and Bosselmann (Wood 2013, 125; Bosselmann 2015, 180–183). The public trust doctrine The public trust doctrine developed in the United States can be defined as “an ancient Roman law doctrine which provides that states must hold certain natural resources, particularly submerged lands under tidal and navigable waters, in trust for the use and benefit of the public and future generations” (Klass 2015, 432–433). In short, it means that states ought to protect natural resources that are included in the trust for future use and enjoyment, and that the alienation of these resources is prohibited (Blumm and Moses 2017, 2). States have “some discretion in managing their trust resources, although many impose a presumption against alienation of public resources, requiring clear legislative intent to accomplish such alienation” (Blumm and Moses 2017, 17–18). The alienation of resources, parcels of land for instance, will be justified when it furthers the purposes of the trust or “do[es] not substantially impair the public interest” in the trust resource that is remaining.4 The United States Supreme Court referred to the doctrine for the first time in 18425 and articulated the parameters of the theory 50 years later in the 1892 case Illinois Central Railroad Co. v. Illinois.6 Its application was then limited to navigable waters and their underlying beds and was extended to wildlife four years later in Geer v. Connecticut.7 Courts subsequently applied the doctrine to these limited common resources until 1970, when Joseph L. Sax suggested that the courts should use the doctrine to compel the government to apply fiduciary duties not only to submerged lands and navigable waters, but also to other natural resources on public lands (Sax 1970, 473). Sax argued that this extension of the doctrine would allow courts to balance conflicting private and public interests when the executive and legislative branches fail to do so for a greater number of resources (1970, 561–562) In the second half of the twentieth century, mainly in the years following Sax’s article, courts have extended public trust protection to other resources. However, as the public trust doctrine is under state rather than federal jurisdiction, it has evolved in different ways in different state jurisdictions. A number of states added ecological preservation as a trust purpose (Blumm and Moses 2017, 25–26). Some state courts (including California, Hawaii, New York and Louisiana) have developed case law applying the public trust doctrine to a range of environmental problems arising outside of submerged lands, including: groundwater,8 lakes,9 wetlands,10 parkland,11 the dry sand area of beaches,12 archaeological remains13 and likely problems arising out of a hazardous waste disposal facility’s operation.14 The recent case of Juliana v. United States could have led to recognition of the atmosphere as a trust resource,15 but the United States Court of Appeals for the Ninth Circuit agreed with the Trump administration that the questions raised by the case, related to the government’s fossil fuel policies violating the human

Trusteeship theory for Canadian public law 151 rights of youth, did not belong before the court but should rather be presented to the executive and legislative branches of government.16 Despite these developments, for most states, the doctrine remains limited to the protection of use and access to navigable waters, submerged lands and fishing but has evolved to include not only commercial but also recreational water-based resources (Klass 2015, 437–438). Therefore, the scope of states’ jurisdiction on natural resources is still limited by the high-water mark in many places (Wood 2013, 147). Federal and state legislation have also referred to the concept of public trust to recognize the government’s duty to prevent damages to a wider range of natural resources, and, sometimes, to grant the government legal standing to sue for compensation in case of pollution (Blumm and Wood 2013, 7). For example, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allows the federal government to recover all costs of removal or remedial action in cases of natural resources’ pollution, which include federal land and water.17 Legislation has thus been used to expand governmental powers in case of damages, but not to restrict those powers by imposing clear fiduciary duties. These pieces of legislation can generally not be used to sue the government that would have omitted to respect a fiduciary duty the same way it can be done through the public trust doctrine. Over the past 40 years, the United States public trust doctrine has been the subject of many critiques. These critiques touch mainly on two themes: the power of the judiciary and the doctrine’s reliance on private property (Ryan 2001, 484– 485). The power of judges to overturn democratic decisions of the executive or the legislative branch has been criticized because judges are not accountable to the public (Ryan 2001, 483). Some commentators, such as Richard Lazarus, who produced one of the most influential critiques of the public trust doctrine, believe that it relies unduly on pro-environment judicial bias (Lazarus 1985, 712–715; Ryan 2001, 485). For Lazarus, the judiciary lacks the technical competence to decide whether fiduciary duties are performed adequately by the government and its agencies. In his view, agency administrators are more likely to have professional training as resource managers (Lazarus 1985, 712; Ryan 2001, 487). The subjective definitions of fundamental concepts such as “beneficial use” or “public concern” exemplify the problematic reliance on the judiciary (Ryan 2001, 488). Indeed, for a resource (for example, water) to be held in trust, there has to be a beneficial use of the resource for the public (Sax 1988, 476). If the resource is not seen as beneficial or of public concern, it is not considered public property and therefore is not subject to the trust (Sax 1988, 478). Shifting judicial visions of what constitutes a “beneficial use” could be detrimental to resource protection and move courts in favor of more development (Ryan 2001, 488).18 As Wood explains, “courts must constantly refresh their understanding of ‘public concern’ in order to determine the appropriate scope of the trust” (Wood 2013, 144). As a result, some courts modernize the scope of the trust while others keep it at its historic definition (Wood 2013, 146). This also demonstrates how the reliance on property as the basis of the trust can be a problem, which leads us to the second theme of critiques: property rights.

152

Stéphanie Roy

On the one hand, authors defending liberal theories of property argue that the doctrine is incompatible with private property rights, as it can limit these in favor of public property rights (Marzulla 1995, 613–615; Ryan 2001, 484). On the other hand, green property theorists also criticize the fact that the public trust doctrine is deeply rooted in the notion of private property, but for a different reason. They believe classical liberal property theory is outdated, as it fails to take into account the interconnectedness of humans and nonhumans in favor of individual autonomy (Ryan 2001, 484–485). Richard Lazarus was also of the opinion that a better framework for structuring our relationship with nature would not be dominated by property and ownership, nor by the concept of public interest, which he found too vague (Lazarus 1985, 703). Rather, Lazarus’s framework would include a formulation of competing values, based on private expectations in rights of use and subject to communal constraints (Lazarus 1985, 706–710; Ryan 2001, 489). Room for improvement Critiques of the public trust doctrine have also suggested strategies for its betterment. If some see judicial oversight to be a problem because judges are unaccountable, then channeling environmental decisions through the executive branch—assuming it has more expertise and is accountable to the public—is preferable (Ryan 2001, 488, 492–493). However, our current institutional structure does not guarantee the protection of environmental interests. Even if it did, when the executive branch is not pro-environment, then the judiciary is the branch most shielded from short-term majoritarian interests. Thus, the judiciary is better placed to protect trust resources (Ryan 2001, 492). Governance of the environment seems to necessitate the contribution of all branches of government, which in turn needs structural change to govern more responsibly. It also appears that “public property,” as understood under the public trust doctrine, does not comprise sufficient environmental resources to effectively preserve nature for future generations (Ryan 2001, 488). Blumm and Moses affirm that, so far, the doctrine has served as an antimonopoly doctrine since it has protected against states’ attempts to create private monopolies over natural resources (Blumm and Moses 2017, 6). It has undoubtedly had beneficial impacts on resource protection in past decades, but the rate of ecosystem degradation and species extinction proves that environmental law and the public trust doctrine are unsuccessful.19 The public trust doctrine’s roots in liberal property law limit its scope (Frazier 1995, 300–301). However, modern use of the doctrine—or of another trusteeship theory—does not require a “backwards-looking appeal to a property law rationale.” As Ryan eloquently put it, “the fact that the public trust [doctrine] is in the common law hardly requires that it be of the common law” (Ryan 2001, 496). Because as long as the doctrine relies on concepts of property to preserve environmental resources, it does not reconsider the assumptions on which the law and the economy are based, which is necessary to find a sustainable approach to managing our planet (Lazarus 1985, 633).

Trusteeship theory for Canadian public law 153 What are the necessary changes? Lazarus notes: “[B]etter solutions, suggested by critics of the judicial function in environmental matters, may reside in new modes of administrative decisionmaking that are less dependent on effective judicial oversight of agency action to ensure full representation of competing considerations” (1985, 712–713). This is exactly what Professors Bosselmann and Wood suggest in their work.

Trusteeship 2.0 Toward clearer duties To improve the effectiveness of environmental law, Wood suggests a nature trust that involves judicial oversight and that rests on the idea that legislatures and agencies respect precise duties (Wood 2013, 167, 240). These duties are not clearly articulated under the public trust doctrine, which lacks “the precision necessary to apply it to a broad realm of practical conflicts arising before modern legislatures and agencies” (Wood 2013, 337). Wood endeavors to explain and describe substantive and procedural duties governments must carry out as trustees of public resources (Blumm and Wood 2013, 7–8). She identifies the six following substantive duties: (1) [P]rotect the res; (2) conserve the natural inheritance of future generations (the duty against waste); (3) maximize the societal value of natural resources; (4) restore the trust res where it has been damaged; (5) recover natural resource damages from third parties that have injured public trust assets; and (6) refrain from alienating (that is, privatizing) the trust except in limited circumstances. (Wood 2013, 167) She then identifies five procedural duties that both legislators and their agents should apply: (1) [M]aintain uncompromised loyalty to the beneficiaries; (2) adequately supervise agents; (3) exercise good faith and reasonable skill in managing the assets; (4) use caution in managing the assets; and (5) furnish information to the beneficiaries regarding trust management and asset health. (Wood 2013, 189) In her framework, citizens are positioned as ethical actors who owe a duty to their community and the next generation to protect nature, as she believes “only constant citizen vigilance will keep government corruption at bay” (Wood 2013, 275–276, 141). Statutory law serves as a guide to structure and order the trust obligation for the executive. The corpus of the trust is broader than that of the public trust doctrine and includes all ecosystems (Wood 2013, 143, 149). Consequently, rights of ownership should balance public and private rights, so that

154

Stéphanie Roy

private property is subject to some communal constraints that are justified by the goal of ecological protection (Wood 2013, 311). The judiciary still enforces fiduciary obligations toward nature and is therefore a cornerstone of the trust (Wood 2013, 230–235). Wood also believes that the Earth’s environment should be part of a planetary trust. Under a planetary trust, states would all stand as sovereign trustees of natural resources and be considered co-tenants of this planetary trust (Wood 2013, 337–338). The trust would encompass resources of planetary concern such as the oceans and the atmosphere. She specifies that “[t]here remains . . . the task of extrapolating general trust principles into more precise logical constructs that can organize and enforce ecological duties among the nation-states” (Wood 2013, 209). . . . and a more encompassing corpus of the trust That is what Bosselmann achieved two years later when he published Earth Governance: Trusteeship of the Global Commons, in which he elaborates a trusteeship model of governance to manage the Earth commons, corpus of the trust (Bosselmann 2015, 29, 53). According to Bosselmann, a global governance model is necessary to manage the environment because environmental issues know no boundaries, and ecosystems are diffuse and interconnected, regardless of states’ sovereignty (Bosselmann 2015, 155–156). Hence, this global problem cannot be solved at the state level, but rather must be solved at the international level (Bosselmann 2015, 4–15). Private property ownership of natural resources such as timber, minerals or water leads private or corporate citizens to seek the enhancement of their personal benefits at the expense of global well-being and long-term environmental health (Bosselmann 2015, 52). Private ownership is also a serious impediment to the global health of resources, their rates of renewal and the fair and responsible consumption (in terms of management and conservation) of the Earth’s ecosystems (Bosselmann 2015, 64, 66). Indeed, science has already established thresholds that every Earth system (such as water, minerals and carbon) should not reach, enabling environmental management that would allow us to calculate what can be exploited and what would need to be protected (Steffen et al. 2015). This knowledge could be integrated in the governance of the Earth’s commons, which is currently unattainable in a global system where every state decides how to manage their resources on sovereign land without considering the environment as a whole (Bosselmann 2015, 155). In Bosselmann’s vision of the trusteeship, the different components of the environment would be considered as commons of all citizens, so that no one could invoke a private right to exploit (Bosselmann 2015, 53, 59). Bosselmann’s conception, focusing on global governance, nevertheless considers national issues regarding the role of the State and the definition of commons (Bosselmann 2015, 50, 57–61). For example, he argues that property rights would still exist if states were trustees, but landowners would have to act as stewards to protect resources on their land for the benefit of all citizens. “Internationally, both states and non-state actors such as large multinationals would likewise become

Trusteeship theory for Canadian public law 155 stewards, a role which would define their relationship with nature” (Bosselmann 2015, 125). At the international level, environmental resources located beyond states’ boundaries including the atmosphere—the biosphere, outer space, the high seas and Antarctica—would also be included in the “commons” and be subject to the Earth’s trusteeship (Bosselmann 2015, 248–249, 260). The beneficiaries of the trust would be all living beings—including but not limited to humans—which would acknowledge their interconnectedness and allow for a holistic approach (Bosselmann 2015, 152). Such global governance would necessitate the contribution of all levels of governance: global, regional, national and local. These levels of governance would cooperate to assess, protect and consume the environment with the best local practices and knowledge of local resources and would commit to protect and share resources on a global level (Bosselmann 2015, 31, 35). Bosselmann proposes the creation of an international legal entity, the World Environment Organization (WEO), which would be responsible for protecting the global commons (Bosselmann 2015, 257–267). Such a global institution would not replace states or compete with them but would rather be complementary to them (Bosselmann 2015, 50). States would act as environmental trustees to protect resources on their sovereign land and would have to cooperate to protect the Earth’s commons (Bosselmann 2015, 200). According to Bosselmann, the UN would provide fertile normative ground to act as trustee to protect the planet’s ecological integrity. The UN has experience acting as a trustee (including for the International Trusteeship System, the World Trade Organization and the World Health Organization) and understands the importance of intergenerational equity and the sustainable development nexus (Bosselmann 2015, 198–199). The United Nations would mandate or create the WEO, but the WEO would function independently and with the assent of states in order to put the global interest over sectoral or national interests (Bosselmann 2015, 259). Its functions would include “monitoring and promoting international environmental agreements, such as the proposed Draft People’s Sustainability Treaty” (Bosselmann 2015, 239). International law created current institutions to address environmental issues are piecemeal and negotiated by states. According to Bosselmann, these institutions equal “the lowest common denominator” because “[t]he consensus-based system gives each country a veto” (Bosselmann 2015, 245–246). Therefore, what he envisages is a governance framework that necessitates states to rethink their understanding of sovereignty (Bosselmann 2015, 246, 267). In their capacity as trustees, states would include other types of wealth and values in their management of public affairs, which is currently focused on prosperity and economic growth and which neglects ecological aspects (Bosselmann 2015, 156, 174–175). Bosselmann argues that state sovereignty is already fundamentally a trust relationship between governments and their citizens. If governments are trustees of their territories, and thus part of the global environment, then “they are, together, responsible for the global environment” (Bosselmann 2015, 173, 196). In order to protect the global commons adequately, states should act as agents of humanity as a whole, consider the public to be affected by their

156

Stéphanie Roy

decisions and “incorporate global interests into the formulation of national interests” (Bosselmann 2015, 245, 175–176). But how can we be sure that individual states will fulfill their fiduciary obligations to the global commons? At the moment, there are already many countries that recognize that their government has a special responsibility to protect the environment. The constitutions of about 100 countries contain references to environmental protection, and half of these include environmental rights (Bosselmann 2015, 179). But the current state of the environment and global warming proves that these protections are ineffective. What remains is for all these states to pragmatically realize their role as environmental trustee. Like a constitutional obligation, this needs to be a non-derogable function of government, to the extent that deviating from trusteeship would trigger the courts’ jurisdiction to invoke trusteeship to halt contrary policy. (Bosselmann 2015, 179) Like Wood, Bosselmann suggests that this can happen only if civil society and its citizens ask for the protection of our shared environment on which our future depends. Bosselmann and Wood argue that to make citizens feel invested in protecting the environment and in holding their governments accountable, they have to be imbued with their role as stewards (Bosselmann 2015, 186–194). This includes realizing their “common ‘ownership’ of the commons is a property holding that requires sustainability” (Bosselmann 2015, 194). An overarching ethical framework This seems ambitious and is maybe idealistic, as it requires serious changes to our way of life and how we understand economic systems. However, this view of citizenship is promising as it would allow for a necessary paradigm shift in our relationship with the Earth and would encourage us to recognize the interconnectedness of all species (Garver 2013, 325–330). Furthermore, a trusteeship is coherent with other mechanisms already suggested to improve environmental law and could serve as an overarching framework to implement these mechanisms (Sand 2004, 48). Along with the increased duties and responsibilities of the State toward the environment, a trusteeship provides an ethical foundation for public action that acknowledges the responsibility of humans toward nature and the Earth, as Aldo Leopold identified in 1949 (Leopold 1949, 224–225; Brown 2010, 218; Bosselmann 2015, 133). It is also consistent with Geoffrey Garver’s suggestions, in his article “The Rule of Ecological Law,” that ecological law must be constrained by ecological considerations, must integrate other disciplines in a systemic ways, and must be adaptive to science developing knowledge in relation to ecosystems (Garver 2013, 325–330). Indeed, the government’s duty under a trusteeship would mean that it would have to consider relevant data and science on matters relating to the environment in order to fully assess the impacts of its

Trusteeship theory for Canadian public law 157 actions on ecosystems (Garver 2013, 319). A trusteeship would also be coherent with the obligation to recognize rights to nature in the Constitution because there would be a body (the trustee) able to enforce these rights. In addition, increasing the government’s duties and correlative recourses would lead to a stronger rule of law (Boyd 2017, 173–174). This would include more effective enforcement of established laws and greater accountability of governments, which has been correlated to superior environmental performance (Scott 2016, 230–237). “While no legal approach offers a panacea,” the trusteeship has the advantage of bringing together many legal solutions that have been proffered to solve the crisis while giving effect to an ethic of responsibility and a reverence toward nature (Wood 2013, 17). It is also compatible with a range of legal tools that favor individual initiatives to implement better technology and produce less waste (Wood 2013, 288–296) while also implementing global, state and local duties of environmental protection and sanctions for breaches of the law. Finally, its common law roots make it even more appealing for a common law jurisdiction such as Canada, which will be explored in the next section.

The compatibility of Canadian public law with fiduciary principles The environment, accountability and public interest On a few occasions, Canadian courts have recognized the role of governments as trustees,20 or demonstrated an openness to recognize it,21 even though there has been no clear application of a public trust doctrine per se (Von Tigerstrom 1997, 380). For example, in the Scarborough case of 1979, the Ontario Superior Court recognized that the city was a trustee of the environment and was therefore entitled to claim damages for the destruction of trees on a road for the benefit of local citizens.22 In a 2004 case, the Supreme Court of Canada acknowledged that Canadian common law had common roots with that of the United States.23 Therefore, there was “no legal barrier to the Crown suing for compensation as well as injunctive relief in a proper case on account of a public nuisance, or negligence causing environmental damage to public lands, and perhaps other torts such as trespass.”24 In this case, British Columbia claimed damages for the loss of trees caused by a forest fire, for which Canadian Forest Products was held responsible.25 However, the Supreme Court did not grant the damages claimed on this basis, as the claim was not fully argued in the first instance.26 The Court mentioned that, if the Crown could sue for compensation for damages caused to the environment on public land, there are clearly important and novel policy questions raised by such actions. These include: (1) the Crown’s potential liability for inactivity in the face of threats to the environment; (2) the existence or nonexistence of enforceable fiduciary duties owed to the public by the Crown in that regard; (3) the limits to the role, function, and remedies available to governments taking action on account of activity harmful to public enjoyment of public resources; and (4) the specter of imposing on private interests an indeterminate liability for an indeterminate amount of money for ecological or environmental damage.27

158

Stéphanie Roy

These judicial developments did not impose a clear fiduciary obligation on governments to protect the environment, such as the public trust doctrine, nor did they suggest the implementation of a model of governance based on the idea of trusteeship (Von Tigerstrom 1997, 387–388). Nevertheless, Canadian administrative and constitutional law do use concepts similar to those of trusteeship, such as accountability, acting in the best interest of citizens and loyalty. In Canada, the executive branch of government is accountable to the legislative assembly (Parliament), so that the executive must have the confidence of the legislative branch in order to stay in office (Hogg 2007, 1:9–2). If the Parliament withdraws its confidence from the government, then the cabinet must resign or advise the Governor General to call an election to form a new House of Commons (Hogg 2007, 1:9–2 to 9–3). Individually, ministers are also responsible for their actions. They have the obligation to resign if their actions and omissions, or those of their ministries, are considered to be contrary to the public interest, the execution of the law and an abuse of Parliament’s trust (Issalys and Lemieux 2009, 343). As a representative assembly, the role of the Parliament is to ensure the transparency and justification of the acts of the executive (Hogg 2007, 1:9–2). In addition to Parliament, other mechanisms and bodies were implemented to hold the government to account, such as judicial review, public inquiries and the Auditor General (Mulgan 2003, 31; Harlow 2014, 203–204). The Canadian government also has the obligation to act in the “public interest,” which refers generally to the common interests of the community. Its actions must be taken in the best interest of citizens, who are the beneficiaries of its actions (Fox-Decent 2011, 29). According to public law, the government also has to act fairly and reasonably toward citizens (Fox-Decent 2011, 25). Pursuant to their duty of procedural fairness, when taking any individual measure, public decisionmakers have to provide a fair hearing to individuals who are affected by their decisions and decide impartially (Fox-Decent and Pless 2018, 238). These obligations entail hearing the arguments of individuals either orally or in writing, giving notice of the hearing and allowing an individual the opportunity to respond to those facts and arguments which might ultimately lead to a decision. In some cases (depending on the context) the duty of procedural fairness also compels a decision-maker to give reasons for their decision. Likewise, the duty to act reasonably refers to the way in which an agency exercises its statutory powers (Fox-Decent and Pless 2018, 238). In Roncarelli v. Duplessis, Justice Rand established that any legal power must be exercised non-arbitrarily, taking into account not only the legislature’s intention in adopting a statute, but also its purpose and objectives (Fox-Decent 2011, 25).28 These obligations—to be accountable to the public, to act in the public interest, to act fairly and reasonably—undoubtedly qualify its responsibility to protect the environment as well. Loyalty and analogous duties of fairness and reasonableness Moreover, Professor Evan Fox-Decent advances the position that the obligations of procedural fairness and reasonableness are the equivalent of the duty of loyalty

Trusteeship theory for Canadian public law 159 in public law (Fox-Decent 2005, 265). He argues that the duty of fairness owed by a government to its people is not a “free-floating moral principle,” but rather one that is justified by an overarching fiduciary relationship between the state and each person subject to its authority (Fox-Decent 2011, 29). This fiduciary relationship arises from sovereignty, which gives the state attributes such as the power to legislate, administer and adjudicate (Fox-Decent 2005, 286). These attributes, along with the power of the state to use coercive force to maintain legal order, point to a “non-consensual relationship of proclaimed authority between state and subject, notwithstanding democratic channels (in democratic states) through which the people’s voice may be heard” (Fox-Decent 2011, 29). Further, the fiduciary nature of the relationship means that it is also legal in nature, and thus it generates legal duties for the state (Fox-Decent 2005, 290). For Fox-Decent, the obligations of procedural fairness and reasonableness imposed on governments in Canada are therefore a public law translation of the fiduciary duty of loyalty in private law (Fox-Decent 2005, 267–268). Concretely, it means that there is a conceptual argument that would support a lawsuit if citizens were to bring up the application of the theory in court to respond to the Supreme Court’s openness to do so in Canfor. However, the way the government has traditionally applied these obligations has proven to be detrimental to ecosystems. Economic growth has often been interpreted as being synonymous with public interest, even though nature’s resources are finite and cannot support constant growth (Victor 2012, 25). Imposing stricter fiduciary duties in accordance with the trusteeship theory as elaborated by Wood and Bosselmann could therefore contribute to the transition from an anthropocentric to a more holistic legal and governance system. It internalizes an ethic of mutually enhancing human-Earth relationship necessary to overcome our anthropocentric approach to nature management (Garver 2013, 325). Not only does it draw on concepts that already exist in Canadian public law—making a transition even more feasible— but it takes them further by imposing a responsibility to protect nature and to identify environmental resources as common property or patrimony.

Conclusion There is a growing literature discussing the trusteeship theory, how the public trust doctrine could be enhanced and how the resulting model of governance could help achieve a paradigm shift from an anthropocentric to a more holistic legal system that internalizes an ethic of mutually enhancing human-Earth relationship (Garver 2013, 318–320). A combination of Christina C. Wood and Klaus Bosselmann’s propositions related to a Nature’s Trust and the Earth Trusteeship is promising as they consider the importance of articulating clear duties of protection to be followed by the government, the necessity of a global scheme where states would collaborate and work together to protect the Earth commons, as well as the importance of citizens’ engagement to keep them accountable, but also to act as stewards of resources on private land for the benefit of all. Such a conception is broader than the American public trust doctrine as it would impose a wider

160

Stéphanie Roy

range of duties and encompass all natural resources. Still, the trusteeship theory is especially relevant to Canadian public law, as it draws on legal concepts already in use in this country, such as public interest, accountability, fairness, impartiality and reasonableness (Fox-Decent 2005, 265). Nevertheless, two major theoretical and practical challenges have yet to be resolved before a trusteeship approach is implemented at the national level in Canada. The first challenge is how do we move from a legal system where private property is considered an absolute right, to one which recognizes a broader set of rights, uses and obligations of owners to act as stewards to manage environmental resources? The second challenge relates to the scope and content of duties of protection at the domestic level. Wood has enumerated a number of substantive and procedural duties that states would have to respect. However, it remains necessary to determine how the adoption of fiduciary duties would affect the executive’s activities on a daily basis.29 The answers to these questions will certainly be a necessary aspect of any solution to the greatest challenges of our time, those of the Anthropocene.

Notes * This chapter is an adaptation of the article “Fiduciary Duties Under the Trusteeship Theory: The Contribution of Canadian Case Law in Judicial Review of Environmental Matters” originally published in the Vermont Law Review, Special Issue, From Environmental to Ecological Law: The Future Lies Ahead, Spring 2019, vol. 43:3, p. 485. ** Doctoral Candidate (LL.D), Laval University; 2017 Pierre Elliott Trudeau Foundation & Fonds de recherche Société et culture Scholar; LL.M 2015, McGill University; LL.B 2010, Laval University. † The author is grateful to Professor Pierre Lemieux of Laval University who is supervising her doctoral work on which this chapter is based. She would also like to thank all her colleagues who generously shared their thoughts on her work and especially Professors Peter G. Brown, Geoffrey Garver and Robert Godin at McGill University. 1 See U.N. Conference on the Human Environment, Stockholm Report of the U.N. Conference on the Human Environment, U.N. Doc A/CONF.48Rev.1 (June 16, 1972) (“[A] growing class of environmental problems . . . will require extensive co-operation among nations and action by international organizations in the common interest.”). 2 Philippines Environmental Policy, Presidential Decree No. 1151, (1979), www.lawphil. net/statutes/presdecs/pd1977/pd_1151_1977.html (proclaiming “the responsibilities of each generation as trustee and guardian of the environment for succeeding generations”). Sweden has had an environmental ombudsman—a role close to that of a trustee—since 1909. Thomas Hillmo & Ulrik Lohm, Nature’s Ombudsmen: The Evolution of Environmental Representation in Sweden, 3 ENV’T & HIST. 19, 25 (1997). 3 See Trust, BARRON’S CANADIAN LAW DICTIONARY (6th ed. 2009) (defining “trust” as “[a] right of property held by one party for the benefit of another,” and noting that the term “implies two interests, one legal and the other equitable; the trustee holding the legal title or interest, and the cestui que trust, or beneficiary, holding the equitable title or interest”). See also Fiduciary, BARRON’S CANADIAN LAW DICTIONARY, supra (defining “fiduciary” as “[r]elating to or proceeding from trust or confidence” and noting that “[o]ne stands in a fiduciary relationship with regard to another person when he or she has rights and powers he or she must exercise for the benefit of that other person. Consequently, a fiduciary is not allowed to benefit personally in any way from the position he or she holds unless he has the requisite consent”).

Trusteeship theory for Canadian public law 161 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

19

20 21

22 23 24 25 26 27

Id. at 17 n.104 (quoting Ill. Cent. R. C. v. Illinois, 146 U.S. 387, 452 (1892)). Martin v. Waddell’s Lessee, 41 U.S. 367, 411 (1842). Ill. Cent. R. Co. v. Illinois, 146 U.S. 387, 452 (1892). Geer v. Connecticut, 161 U.S. 519, 535 (1896), overruled on other grounds by Hugues v. Oklahoma, 441 U.S. 332 (1979). See, e.g., In re Water Use Permit Applications, 9 P. 3d 409, 447 (Haw. 2000) (declaring no distinction between ground and surface water under the public trust doctrine). Id. at 448. See, e.g., Nat’l Audubon Soc’y v. Super. Ct. of Alpine Cty., 658 P. 2d 709, 721 (Cal. 1983) (expanding public trust protection to non-navigable waters under California law). See, e.g., Raritan Baykeeper, Inc. v. City of New York, No. 31145/06, 2013 WL 6916531, at *5 (N.Y. Sup. Ct. Dec. 20, 2013) (asserting that only the legislature may command that park lands be utilized for anything but serving the public interest). See, e.g., Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365–66 (N.J. 1984) (holding that the public has an interest in accessing dry sand areas of beaches despite private ownership). See, e.g., Wade v. Kramer, 459 N.E.2d 1025, 1027 (Ill. App. Ct. 1984) (discussing trusteeship of the state over archaeological sites). See e.g., Save Ourselves, Inc. v. La. Envtl. Control Comm’n, 452 So. 2d 1152, 1154, 1157 (La. 1984) (describing the responsibility of government to act as trustee and prevent environmental pollution of hazardous waste). See Juliana v. United States, 217 F. Supp. 3d 1224, 1252–55, 1255 n.10 (D. Or. 2016). United States v. U.S. Dist. Ct. for the Dist. Of Ore., No. 18–36082 (9th Cir. 2020), at 31. Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC Chapter 103, § 9601 (6) & (16) See, e.g., Empire Water & Power Co. v. Cascade Town Co., 205 F. 123 (8th Cir. 1913) (reasoning that the instream flow that produced a 30-foot waterfall with enough spray to turn a canyon three-quarters of a mile long into a lush haven of native vegetation was not a “beneficial use” protected under contemporary prior appropriation law though common law riparianism would have protected the natural flow of the falls). Wildlife has declined by 58% since 1970 worldwide due to the excessive demand of humanity on planetary resources. WORLD WILDLIFE FUND, LIVING PLANET REPORT 2016: RISK AND RESILIENCE IN A NEW ERA 6 (2016). A 2015 study has shown that the Earth has started its sixth mass animal extinction. Gerardo Ceballos et al., Accelerated Modern Human-Induced Species Losses: Entering the Sixth Mass Extinction, 1 SCI. ADVANCES, June 9, 2015, at 4. Forests are also under threat. The forest cover has declined by 30%, and the rest is either degraded (20%) or fragmented, leaving only 15% of forests intact. Forests, WORLD RES. INST., www.wri.org/our-work/topics/forests (last visited Feb. 19, 2019). Scarborough (Borough) v. R.E.F. Homes Ltd., [1979] O.J. No. 78, para. 5 (Can. Ont. S.C.) (QL) (cited with approval in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, para. 27 (Can.)). British-Colombia v. Canadian Forest Products Ltd., 2004 SCC 38, paras. 9, 79(Can.); see Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans) [1997] 1 S.C.R. 12, 25 (Can.) (demonstrating the court’s openness to considering the government as trustee in the context of fisheries); Saulnier v. Royal Bank of Canada, 2008 SCC 58, para. 14 (Can.) (holding that the minister has a duty to manage fisheries as a common resource). Scarborough, [1979] O.J. paras. 5, 6. Canadian Forest Products Ltd., 2004 SCC para. 81. Id. Id. para. 2. Id. para. 82. Id.

162

Stéphanie Roy

28 Roncarelli v. Duplessis [1959] S.C.R. 121, 140 (Can.). 29 Extracting detailed examples from the judicial review of environmental matters case law could help us understand how analogous public law concepts are applied to establish clear conditions for the application, content and scope of fiduciary duties and is also the subject of future work by the author.

References Barnes, P. 2001. Who Owns the Sky?: Our Common Assets and the Future of Capitalism. Washington, DC: Island Press. Barritt, E. 2014. “Conceptualising Stewardship in Environmental Law.” Journal of Environmental Law 26: 1. Benvenisti, E. 2013. “Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders.” American Journal of International Law 107, no. 2: 295–333. Blumm, M.C. and R.D. Guthrie. 2011. “Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision.” UCDL Review 45: 741. Blumm, M.C. and A.P. Moses. 2017. “The Public Trust as an Antimonopoly Doctrine.” Boston College Environmental Affairs Law Review 44: 1. Blumm, M.C., and M.C. Wood. 2013. The Public Trust Doctrine in Environmental and Natural Resources Law. Durham, NC: Carolina Academic Press. Bosselmann, K. 2015. Earth Governance Trusteeship of the Global commons. Cheltenham, UK: Edward Elgar Publishing. Boyd, D.R. 2017. The Rights of Nature: A Legal Revolution That Could Save the World. Toronto: ECW Press. Brown, P.G. 2010. “Are There Any Natural Resources?” In Water Ethics: Foundational Readings for Students and Professionals, edited by Jeremy J. Schmidt and Peter G. Brown, 203. Washington, DC: Island Press. Brown Weiss, E., and D. Ferry. 1989. In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity. New York: Transnational Publishers Inc. Estey, W. 1972. “Public Nuisance and Standing to Sue.” Osgoode Hall Law Journal 10: 563. Fox-Decent, E. 2005. “The Fiduciary Nature of State Legal Authority.” Queen’s Law Journal 31: 259. Fox-Decent, E. 2011. Sovereignty’s Promise: The State as Fiduciary. New York: Oxford University Press. Fox-Decent, E., and A. Pless. 2018. “The Charter and Administrative Law Part I: Procedural Fairness.” In Administrative Law in Context, edited by Colleen M Flood and Lorne Sossin, 3rd ed. Toronto: Emond. Frazier, T.W. 1995. “The Green Alternative to Classical Liberal Property Theory.” Vermont Law Review 20: 299. Garver, G. 2013. “The Rule of Ecological Law: The Legal Complement to Degrowth Economics.” Sustainability 5: 316. Gillese, E.E. 2014. The Law of Trusts, 3rd ed. Essentials of Canadian Law. Toronto: Irwin Law. Halley, P., and J. Sotousek, eds. 2012. L’environnement, notre patrimoine commun et son État gardien: aspects juridiques, nationaux, transnationaux et internationaux. Cowansville, QC: Éditions Yvon Blais. Harlow, C. 2014. “Accountability and Constitutional Law.” In The Oxford Handbook of Public Accountability, edited by Mark Bovens, Robert E. Goodin, and Thomas Schillemans, 195. Oxford: Oxford University Press.

Trusteeship theory for Canadian public law 163 Hogg, P.W. 2007. Constitutional law of Canada, 5th ed., Vol. 1. Toronto: Thomson Reuters. Issalys, P., and D. Lemieux. 2009. L’action gouvernementale—Précis de droit des institutions administratives, 3rd ed. Cowansville, QC: Éditions Yvon Blais. Kenner, A. 2005. “The Public Trust Doctrine, Parens Patriae, and the Attorney General as the Guardian of the State’s Natural Resources.” Duke Environmental Law & Policy Forum 16, no. 57: 57. Klass, A.B. 2015. “The Public Trust Doctrine in the Shadow of State Environmental Rights Laws: A Case Study.” Environmental Law 45: 431. Lazarus, R.J. 1985. “Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine.” Iowa Law Review 71: 631. Leopold, A. 1949. A Sand County Almanac. New York: Ballantine. Marzulla, N.G. 1995. “State Private Property Rights Initiatives as a Response to ‘Environmental Takings.’” SCL Review 46: 613. Mulgan, R. 2003. Holding Power to Account—Accountability in Modern Democracies. Basingstoke, UK: Palgrave McMillan. Reid, C.T., and W. Nsoh. 2016. The Privatisation of Biodiversity? New Approaches to Conservation Law. New Horizons for Environmental and Energy Law. Cheltenham, UK: Edward Elgar Publishing. Ryan, E. 2001. “Public Trust and Distrust: The Theoretical Implications of the Public Trust Doctrine for Natural Resource Management.” Environmental Law 31: 477. Sa, J.G. 2008. “Le trust: de la protection patrimoniale au moyen âge à la protection internationale de l’environnement au XXIe siècle.” RQDI 21, no. 1: 97. Sand, P.H. 2004. “Sovereignty Bounded: Public Trusteeship for Common Pool Resources?” Global Environmental Politics 4, no. 1: 47. Sax, J.L. 1970. “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.” Mich LR 68: 473. Sax, J.L. 1988. “The Limits of Private Rights in Public Waters.” Environmental Law 19: 473. Scott, J. 2016. “From Environmental Rights to Environmental Rule of Law: A Proposal for Better Environmental Outcomes.” Michigan Journal of Environmental and Administrative Law 6, no. 1: 203. Shapiro, F.R. and M. Pearse. 2012. “The Most-Cited Law Review Articles of All Time.” Michigan Law Review 110, no. 8: 1483–1520. Steffen, W., K. Richardson, J. Rockström, S.E. Cornell and I. Fletzer. 2015. “Planetary Boundaries: Guiding Human Development on a Changing Planet.” ScienceMag 347, no. 6223: 1259855. Stone, C.D. 1994. “Defending the Global Commons.” In Greening International Law, edited by Philippe Sands, 34. New York: The New Press. Victor, P.A. 2012. “Living Well: Explorations into the End of Growth.” Minding Nature 5, no. 2: 24. Von Tigerstrom, B. 1997. “The Public Trust Doctrine in Canada.” Journal of Environmental Law & Practice 7: 379. Wood, M.C. 2013. Nature’s Trust: Environmental Law for a New Ecological Age. New York: Cambridge University Press. Yogis, J.A., and C. Cotter. 2009. Barron’s Canadian Law Dictionary, 6th ed. Hauppauge, NY: Barron’s Educational Series.

11 African eco-philosophy on forests A path worth exploring for the implementation of Earth jurisprudence Ngozi Finette Unuigbe

Introduction The conservation of forests in many diverse ecosystems holds the key to mitigating vicious environmental crises gradually leading to environmental catastrophes. Increasing concentration of carbon dioxide in the atmosphere followed by global warming that culminates into climate change is perhaps the worst human-caused ecological catastrophe in the history of mankind. Some of the traditional tried and tested, yet now marginalized, ways that have evolved over the generations to handle ecological challenges with wise forest conservation practices still stand as a lesson for us to learn. Today as the world faces daunting threats and consequences of climate change, it is time to look back at some of these practices, analyze them and, if need be, reclaim them (Thomas 2003). Environmental conservation is not a recent phenomenon in Indigenous African communities; past generations knew about environmental degradation and the need for preservation. Traditional African societies believe that mankind was created as part of an interrelated universe. A host of nature spirits associated with specific animal and tree species and sacred forests, rivers, lakes and mountains remind local communities of their need to respect the environment and to use it sustainably. For example, among the Karanga people of Zimbabwe, land is sacred since it is the ancestral land. It is sacred because it bears the remains of ancestors, particularly in the form of graves of the chiefs. For the Karanga, land belongs to the living, the unborn and the dead. Land is so sacred that it should not in any circumstance be sold or transferred to another. It is for this reason that, among the Karanga, no one has liberty to gather wild fruits, cut down trees, hunt certain animals or pollute certain water bodies in areas or places regarded as sacred (Clemence and Chimininge 2015). In a web-like relationship, patches of forests in the communities are protected because they support sacred totemic animals believed to have special spiritual or cultural values and associations. Cutting down of forest trees for charcoal and the quarrying of rocks in these areas has also been prevented by Indigenous cultures (through sanctions) because of the belief that lesser gods and other spirit beings reside in them. These, among other things, are believed to have helped in the promotion of natural resource conservation and management for a very long time. (Alun 2005)

African eco-philosophy on forests 165 This chapter aims to show that African Indigenous beliefs, cultural taboos and their sanctions have helped to check abuse of the environment by Indigenous people in the past. The chapter also seeks to show that the disregard for these traditional checks and balances has adversely affected their enforcement in our contemporary era. Thus, this chapter argues that a re-visitation (or visitation) of the principles of traditional African religious practices on forests would promote the implementation of Earth jurisprudence and ecological law by providing modern conservation programs in Africa and globally with an insight into the activities of communities that managed to live alongside the rivers and forests and use them sustainably. It may be worth borrowing a leaf from traditional African spiritual beliefs to further environmental conservation for the well-being of humanity and out of respect for creation (Adu-Gyamfi 2011).

The trajectory of African eco-philosophy The traditional African cultural practices, previously regarded as inferior or incompetent, are increasingly gaining recognition as an important complement to existing conservation strategies. This recognition, however, is still inadequate within official conservation policies. The rationale for current efforts seeking to revive and promote traditional African cultural practices as a conservation option is backed by several arguments (Saj et al. 2006). One is that the use of practices coincides well with the philosophy of co-management approaches that advocate sharing of power, rights and responsibilities between the state and local resource users (Berkes 2003). This argument is centered on the management capabilities of local communities and possible dangers of disregarding them. The fact that the communities have regular interactions and are more familiar with resources in their environment than other potential actors makes them one of the best managers of resources, who could contribute effectively to current conservation efforts. Traditional African cultural practices are generally built into ways of conserving and protecting natural resources against overexploitation through the use of taboos and totemic affiliation with localities and wild flora and fauna species. The practices also involve devising institutions that can oversee and regulate resource use on a sustainable basis. Globally, these practices have been effective in protecting ecologically and economically important species. Local communities attach great value to traditional cultural practices (Infield 2001; Kideghesho 2008). It is, therefore, apparent that official recognition of these practices will be an important factor in complementing current economic incentives seeking to motivate people to support conservation efforts. It has been demonstrated that non-economic, culture-oriented incentives are as important as economic ones in motivating people to support conservation efforts (Infield 2001). Furthermore, support for traditional cultural practices can help to undo a misunderstanding instilled by the colonial system among local people that nature belongs to the West. The traditional cultural practices can also be part of a solution to inadequate funding—a major constraint on conservation work. Current

166

Ngozi Finette Unuigbe

conservation strategies in Africa are principally dominated by law enforcement— an expensive undertaking calling for huge investment in terms of manpower, vehicles and firearms. Traditional African cultural practices, however, can be economically affordable and sustainable compared to other strategies. For instance, no huge funds are required to make communities respect local taboos governing resource use and conservation. In Africa generally, taboos, totems and sacred places have been used to protect and preserve the environment. Taboos have been used to maintain the values and respect for living beings, especially the endangered, small and powerless creatures such as pythons and pangolins (Dagba et al. 2013; Kanu 2015). In Zimbabwe, for instance, taboos have penalties for the offenders such as failing rain if one kills a python. Animals were also protected from extinction through various respects of totems. Each clan has a totem belonging to an animal that the clan would not kill and eat. It is strongly believed that eating one’s totem will result in loss of teeth (Dagba et al. 2013). Taboos have also been used to conserve fruit trees. Some plant species were not used for fire, arguably because burning them would cause a lot of smoke, yet the idea was that these were fruit trees not to be destroyed (Duri and Mapara 2007). Water sources have also been kept clean and protected by adhering to taboos regarding the use of water. In Nigeria, for instance, River Ethiope is deified as a source of life and fruitfulness by the Indigenous communities around it; as such, any kind of desecration of it is a taboo. For Indigenous Africans, therefore, there is no clear separation between what is secular and what is sacred. Everything and every act are looked upon in a religious and customary perspective. Africans view themselves as part of the environment and the universe. Man is conceivable only in this cosmic interweavement. This web of relationships is what makes Africans view the Earth as their mother and themselves as her children. Little wonder Africans refer to their land as Mother Earth (Ogungbemi 1997). Despite the fact that humanity, nature and the gods are distinct concepts, they belong to some ontological categories that are interrelated and interdependent. Therefore, along with human beings, plants, animals, rocks, water and other non-living beings are part of nature; all products of creation deserve to be respected as much as human beings. This interconnectedness makes Africans regard themselves as being in close relationship with the entire cosmos. Because human beings are a constituent part of the environment and creation, it is expedient that humans must protect the interests of other parts of creation (Ogungbemi 1997). Africans perceive the universe and life within it in terms of religion. The implication of this outlook is that everything in the universe, both visible and invisible, is religiously interpreted. Thus, the social, political and economic institutions and aspirations are closely linked to the people’s assumptions, beliefs and interpretations of the universe. To a traditional African, the universe contains numerous participants—spirits, humans, animals and plants. Another important aspect of the African concept of the universe is that the visible world depends on the invisible world so that the sacred and mundane cannot be dichotomized (Workineh 2015).

African eco-philosophy on forests 167 The spirit world and the material world are not two independent worlds. One has no meaning without the other; they complement each other. However, it is the spirit beings that control the material world; the material world is an arena in which the various categories of spiritual beings display their powers. Human beings are dependent upon these spiritual beings for their needs, while the spirit beings need humans to gladden their hearts, to feed them (Workineh 2015). It is common in Africa, for instance, to find sacrifices (ranging from cooked food to slaughtered animals) at street junctions or in water bodies. These sacrifices are usually made to entreat the spirits for forgiveness or for favors sought. Thus, for Africans, the universe is living because divine beings are actively involved in it. The human being is simply part of the whole, a responsible part among many and not owner of the other parts. Reality is therefore both relational and inter-relational. Africans do not make a sharp distinction between the self and the world, humankind and nature, subjects and objects: these are one reality. The natural environment is therefore seen as a living phenomenon. As a result, in the past, a culturally acceptable environmental management in the form of strictures and taboos related to water bodies, land and deep forest was put in place. The cultural practices served the important purpose of conserving nature (Giddy 2019).

African taboos as ecological guardians Taboos were used by our ancestors to protect the ecosystem. The word taboo is derived from the Polynesian term “tabu,” which means “forbidden.” Taboos represent social rules that regulate human behavior (Obediah 2015). Such constraints not only govern human social life but may also affect, and sometimes even directly manage, many constituents of the local natural environment (Obediah 2015). Whatever the reason for such constraints, taboos may, at least locally, play a major role in the conservation of natural resources, species and ecosystems. No matter how trivial or absurd taboos may appear to the modern mind in details, they contain within them “germinant principles of social progress and moral order” and so “the cornerstone of the whole social order” (Dennis 2013). There was no part of the social system in traditional African societies that was not regulated and governed by taboos. The taboo system was the main source of bonding in all human relations and transactions. Unfortunately, taboos associated with African beliefs and practices have been discarded as “savage taboos” and so marginalized from moral discourse, since African Traditional Religion (ATR) is not considered among the major religions. The analysis of some African environmental taboos in this chapter will show that, on the contrary, taboos associated with ATR are not savage because they have rational and scientific explanations and moral principles (Cassier 1992). Traditional authorities used taboos for regulating the ethical and sustainable use of the environment and its resources. Examples of activities that most African communities considered taboo include: clearing of sacred forest or bush; felling of forbidden timber species; hunting of animals or fishing during forbidden seasons and sacred days; eating of totem animals such as tortoises, parrots and

168

Ngozi Finette Unuigbe

eagles; eating of sacred animals or fish; digging of graves for burial without due authorization from the chief or other traditional authorities; and washing clothes in streams and fetching water with silverware (Dennis 2013).

Why forests matter in African traditional thought Forests are a key component of many ecosystems. Where they occur naturally, forests hold great value in every local community and in the global world. Besides its economic importance as a source of food and wood, its pharmaceutical relevance, its provision of shelter and recreational opportunities and the great sociocultural significance that it holds for Indigenous peoples, forest provides environmental services such as stabilizing the soil so as to prevent erosion, replenishing the soil’s nutrients, regulating the hydrologic cycle, holding humidity, harboring extensive reserves of biodiversity and regulating climate change (Brandon 2014). Without forests, trees, shrubs and other plants, which are part of every forest, the only thing you will see before you when you look ahead of you will be bare sand, stones, mountains and a natural landscape without the beauty of forests and trees. Too much deforestation will greatly harm human health around the world because forests take carbon dioxide from the atmosphere and produce oxygen for human survival (Ikeke 2013; David 2016). Forests are important not only to human life but also to nonhuman lives and species that depend on the forest environment for survival and flourishing. Forests should be looked upon not simply for their utilitarian value but also for their intrinsic ontological value. The forest has value in itself, not simply because of its value for human persons. In African metaphysical ontology, the intrinsic value of the forests is rooted in its pantheistic-psychic foundation, which implies that the divine active force and spirit of the creator pervade all creation. It is this that gives value to all things, not simply their utility (Adu-Gyamfi 2011). Sacred groves in many communities demonstrate the sense of ecology within ancestral ATR. Sacred groves include patches of forest lands in water catchment areas on hilly slopes, river beds and river edges. They are areas set aside as sacred sites and strictly protected by customary laws, beliefs and enforced taboos. Chiefs, communities or individuals have reserved these areas for traditional, cultural or religious purposes such as royal burial grounds, preservation of watercourses and sacred plants and the abodes for traditional deities. Sacred groves have assisted the protection of rivers and streams and fishes in them, rare species of plants and animals, fragile ecosystems and prime forests (Ikeke 2013). Sacred groves serve important ecological and sociocultural functions by preserving virgin forests, which are important refuges for rare and useful local biodiversity, and sources of herbs for medicinal, social and religious purposes. In Ghana, for instance, sacred groves act as reservoirs in the conservation of some important fauna groups and/or species across a landscape matrix that is largely devoid of forest habitat. The dense forest of the Osun Sacred Grove, on the outskirts of the city of Osogbo, is one of the last remnants of primary high forest in southern Nigeria.

African eco-philosophy on forests 169 Regarded as the abode of the goddess of fertility Osun, one of the pantheons of Yoruba gods, the landscape of the grove and its meandering river is dotted with sanctuaries and shrines, sculptures and artworks in honor of Osun and other deities. In the forest zones, it was forbidden to fell certain trees without the knowledge of the chief or priest. It was believed that blood would ooze out of the tree if cut. Therefore, the restriction preserved the few in the forest. Clearly, traditional African peasants knew that cutting all or most of the available forest would not only deprive future generations of rare plants and animals but would also affect the delicate balance between land, plants, animals and humans with their needs for food, medicine, space, clean water and clean air. This environmental consciousness has been part of the traditional African mind for many centuries. It may not make sense to a modern scientific mind, or perhaps more importantly to conventional capitalist economists, but it has helped African people to navigate natural resources in a sustainable way for centuries. It is important then to appraise and evaluate the African idea of the forest, interrogating it in a critical manner, with the goal of proposing that traditional thought about the forests not only is not obsolete or decadent, but it also provides guidance for the future. Traditional thought can help in ameliorating existing ecological crises, but awareness of hostile and perverse aspects of traditional thought is well advised (Ikeke 2013). African traditions of patriarchy, slavery and female genital mutilation, among others, need to be confronted. In some African traditions, for example, women are not permitted to enter certain sacred forests in Africa that even young males are permitted to enter. Women are not permitted to touch or harvest certain trees or fruits that men are allowed to touch and harvest. People who die in ways considered mysterious and shameful, even when it is not their fault, can only be buried in the so-called “evil forests”. In some African traditions, twin babies were thrown into the evil forest to die. In order to get healing cream or life elixir, young men were sent on dangerous and difficult journeys into distant forests just to save the life of the son of the king or great elder (Ikeke 2013). This same privilege was not accorded to ordinary members of the community. The children of people who were not part of royalty could die and it really did not matter, reflecting a perverse notion of hierarchy and inequality. These points are mentioned to show that African ideas about the forest cannot be romanticized; some traditions are not necessary or helpful as examples for the future. Yet in the midst of these limitations are ideas about the forest that could be included in understandings of ecological law that will promote sustainability and environmental protection. African traditional ideas and beliefs about the forest have been diluted with contemporary ideas about forests. Cultural beliefs about the forests were not haphazard or irrational. They come from Indigenous pragmatic experience of the environment (Ikeke 2013). It is unfortunate, therefore, that some scholars like Kiros condemned the refusal of the traditional African farmer to cut down certain

170

Ngozi Finette Unuigbe

forests as economically unintelligent. He argued that a reasonable African must not refuse to cut the trees. For him, “refusing to cut the trees so as to feed the hungry is foolish and destructive” (Kiros 1992). Criticisms of this nature reflect a worldview grounded in human dominion and control of nature—a worldview that seems increasingly to be linked to broad patterns of ecological disruption that seriously threaten long-term prospects for humans and other life. The industrial and agricultural practices that exploit people and the environment are supported by the values and beliefs that are central to modern society. These values and beliefs fuel the demand for increasing material and consumer resources and drive the cycle of exploitation and destruction (Salafky and Wollenberg 2000). The essential reasons for the current excessiveness (intemperance) of man’s interaction with nature (the reasons for the “destruction of Nature”) and/or reasons for the inefficiency of the current normative interference (that is, the environmental protection laws) have been found in the dominant anthropocentric cultural paradigm of the Western cultures oriented toward an “unlimited material progress.” The morality therefore controlling man’s interaction with Nature has remained unchanged—utilitarian (Deckers 2004; Nir 2005). The religious and economic values and assumptions of modernity have pervaded our social norms and spawned the current ecological demise. In Africa, the forest is not simply the trees. The forest includes all that inhabits and lives there. To many African peoples, trees and forests have long had and continue to have special significance. The Ngombe indigenes of Central Africa live in very dense forest and refer to God as: “The everlasting One of the forest,” “the One who clears the forest,” “the One who began the forest,” while a number of peoples set aside sacred groves for sacrifices, offerings or prayers. A number of peoples also feared the spirits of the forest and of the water. From several parts of Africa come accounts of trees that refused to be moved, even by modern machinery designed for the task. These trees are believed to have magical powers. That is why the discussion on forest management and other uses of the forest should not simply be limited to economic concerns. The well-being and concerns of the humans and other nonhuman elements in the forest should be taken into consideration. The forest should be looked to not only for its wood and timber provision, but also for how it can be preserved to promote all life and the sustainability of the ecosystems. This is why what happens to medicinal plants, other organisms and biodiversity in general should be taken into consideration in the process of harvesting for wood. Peterson (2004) has revealed that the use of the forest among forest-dwellers in Central Africa moved beyond utilitarian purposes as they had a mutual relationship with the forest. They were able to innovate in the midst of change and natural disaster. They knew how to adjust their lives to the changing patterns of the forest. He writes that: If one year the forests give only a little of the preferred asali honey, they know where to look for the less sweet but also good apiso. If hunting proves poor in

African eco-philosophy on forests 171 one locale, switching camp to a new area was not difficult. [In other words, nature and humans interrelate with some degree of flexibility and slack.] (Peterson 2004, 170) Unlike Western biocentrists who tend to view humans as victims under the heavy hand of nature as taskmasters, Central Africans see nature as offering them some freedom of choice rather forcing their fate upon them. The experience of Central Africans provides us with a lesson. It affirms that although we cannot do with nature whatever we please, neither does nature leave us without freedom. Instead, there exist the opportunity and the responsibility for us to play a creative role in shaping the future of the natural and social evolutionary process. “We are cocreators, not simply victims of natural deterministic forces” (Peterson 2004, 171). The beliefs about trees and forests in Africa are subject to variations. The point is that there were various uses of the forest in Africa based on localities. The particular kind of forest that was considered to be an evil forest may not be an evil forest in another locality. A type of forest that was considered unreachable in one locality may be easily navigated by forest-dwellers in another locality. Whatever the perception of forest, it helped the people in that particular community to adjust and adapt to the sacredness of that forest. Essentially, traditional African beliefs and perceptions about the forests, no matter how perceived, helped in ecological preservation and inhibited climate change either consciously or unconsciously. Trees and forests were left uncultivated and allowed to flourish, thereby preserving the lungs of life that provided oxygen and that absorbed carbon dioxide from the environment. Compare this with the prevailing utilitarian mindset that places little or no value on sacred trees and forests beyond their economic value. Trees are felled without taking into consideration that doing so will cause climate change and deplete the atmosphere of oxygen that human persons need. It should be realized that from every perspective, such as physical health, mental health, environment and aesthetics, with every tree that is felled, not to speak of forests that are destroyed, the Earth is impoverished and a great deal of species are potentially lost. African forests such as the mangrove forests and rain forests are rich in biodiversity, medicinal resources, spiritual recreation opportunities, arenas for education and preparing for adulthood. Every loss of an African forest is a great loss as we can observe even from the destruction of forests in Africa by Africans (Clarke 1999). It is therefore imperative to continue to insist that the value of African forests goes beyond utilitarian purposes. Africans should revisit and re-imbibe the ethos of communalism which should also be imbibed on a global scale. The African communal attitude to life affected all elements of life. Tangwa interprets the African outlook as eco-bio-communitarianism which implies “recognition and acceptance of interdependence and peaceful coexistence between earth, plants, animals, and humans” (2006, 389). This does not mean there is no difference between plants and animals, and other elements in the world, but no matter the difference, all beings and realities in the cosmos intermingle and interrelate. Tangwa argues further that among his own

172

Ngozi Finette Unuigbe

Nso people of the Bamenda in Cameroon, this difference is recognized, but it does not give human persons any special privilege or unlimited right to subdue, dominate, conquer and exploit nature; rather human persons are to live with nature in a spirit of coexistence and friendship, making moderate use of the things of nature (Tangwa 2006). This also affects the African understanding of the forests and trees. The forests are a communal heritage from the ancestors. This heritage is held in trust by the community under the direction of the town elders and chiefs for the well-being of the entire community. There are no personal or private forests in traditional Africa. You cannot own the forests. Not even the community owns the forests.

African traditional thought on forests and Earth jurisprudence Human defilement of Mother Earth has caused untold damage to the environment and is especially accelerated by commercial interests driven solely to increase profits by extracting as much as possible from nature. Short-term human interests, fueled by an insatiable drive to accumulate money and power, have been enshrined in various laws with total disregard for the well-being of the living Earth community. For example, most laws permit and legitimize extraction from Nature upon the simple requirement of conducting an environmental impact study and/or assessment. For example, Nigeria’s Environmental Impact Assessment Act (EIA) of 1992 is meant to be a proactive legislation that would prevent negative impacts of development projects on the environment. However, more than two decades after the EIA was enacted, the country’s environment is still characterized by ecological problems, unplanned growth and increasing problems of domestic and industrial waste disposal and pollution (Eneh 2010). One of the major reasons for this is that the most important aspect of the EIA, the Environmental Management Plans (EMP) in which the impactive, preventive, mitigative and monitoring measures were proposed, were seldom implemented by the operators, thus making the entire EIA exercise a worthless and wasteful affair (Ayanda 2010). Earth jurisprudence, which captures the essence of ecological law, is a philosophy of law and governance that is based on the recognition that humans are part of a wider community along with other living beings, in the web of life. Other living beings include animals, birds, plants and fish as well as components of the Earth such as water bodies, mountains and forests, among others (Burdon 2010; Cullinan 2011). Earth jurisprudence acknowledges that the welfare of each member of the wider community (both human and nonhuman) is dependent on the welfare of the Earth as a whole (Berry 2006). In other words, the health of the communities that live on Earth depends on the health of Mother Earth herself, because all beings derive their lives from nature. If we comprehend (and operationalize) this simple fact, human societies can flourish only if they regulate themselves as part of the wider Earth community. Any attempt to exploit or destroy Mother Earth or other beings or components will lead to the destruction of humans themselves. The multiple ecological, climatic and social challenges in Africa and the rest of the world are escalating. The future and legacy we hope to leave our children and

African eco-philosophy on forests 173 those of other species are at stake. In order to reverse this trend, it has been suggested repeatedly that there is a need to deal with the root causes. The presence of strong environmental laws has instead led to more destruction of the environment (Pelizzon 2015). Some such suggestions are to the effect that laws that govern life and maintain order and well-being for the whole web of life must take center stage in directing policy and sound ecological governance. In other words, Earth jurisprudence must be entrenched within all areas of law and governance. Entrenching Earth jurisprudence requires the adoption of laws and policies that transform ways of living, which must be done in two ways—transforming the current dominant legal system and adopting new forms of law based on Earth jurisprudence. In regard to forests, this seeming shift in paradigm would simply require readopting/adopting (as the case may be) the ethos embedded in the African thought on forests—not as a magic bullet, but as a fundamental step to be taken in the journey to preserve and (perhaps) reclaim our dwindling forests for present and future generations. A lot of countries have far-reaching legislations on forest (and sometimes, National Parks) conservation—laws which protect the forests (thereby protecting the flora and fauna in them) by the reservation of certain areas as “forest reserves” and “protected forests.” In such areas, certain human activities are prohibited, like burning, unlawful taking of forest products and uprooting or stripping off the bark or leaves from a tree (Federal Ministry of Environment 2006). Basically, the Forestry and National Park legislations protect certain areas and species, leaving certain other areas unprotected. This may be due to the fact that such regions have no forest reserve or national park, notwithstanding that they contain abundant species of flora and fauna. Legislations protecting endangered species may have been helpful in terms of their coverage and protection of the flora and fauna species listed. However, the problem with many such laws is their obvious lack of proactive provisions, which would be broad spectrum enough to prohibit “habitat destruction.” For instance, human activities destroy forest habitats both directly through forest clearance (as is the case during seismic or oil drilling operations on land) or wetland drainage and indirectly through pollution. Arguably, the customary laws discussed in the preceding sections can be applied as parallel laws for the protection of forests in Africa. However, in most cases, customary laws will not be applicable where they are incompatible with statute law, and where they are “repugnant to natural justice, equity and good conscience” as provided by section 20 (1) Eastern Nigeria High Court Law, 1985. Yet, in Nigeria, for instance, one of the strategies for achieving national environmental policy on forestry, wildlife and protected natural areas under the revised Nigerian National Policy on the environment of 1999 in paragraph 4.9.i is “combining desirable features of traditional approach with modern scientific methods of conservation.” If this provision is adhered to, the positive and “non-repugnant” customary laws on forests have strong potential to achieve effective forestry management in the country. The Convention on Biological Diversity recognizes and supports the importance of traditional knowledge, innovations and practices of Indigenous and local

174

Ngozi Finette Unuigbe

communities for the conservation and sustainable use of biodiversity, and Article 8(j) of the Convention aims to respect, preserve and promote such traditional knowledge.1 The Convention also recognizes the interdependence of Indigenous and local communities and biodiversity. Environmental conservation planning should therefore take into account both the rights and traditional knowledge of Indigenous and local communities. The main principle for achieving this is through the effective participation of Indigenous peoples and local stakeholders in decision-making and governance processes, on the basis of free, prior and informed consent to any projects, plans or changes that affect their communities, traditional lifestyles and environment.

Conclusion Forests serve a variety of cultural and symbolic functions in Africa. They are intimately linked with ancestry and cultural heritage. Forest symbols provide social structure and cultural identity in a rapidly changing environment. There is little information on the ways in which conservation values in Africa are changing. No studies explore the implications of changing cultural values on forest resource use. And yet, there can be little doubt that values have changed and are continuing to change as Western ideologies on utilitarianism have “diluted” the communitarianism ethic that erstwhile underlined environmental conservation in Africa. With this evolution people’s perceptions of the surrounding forest environment will undoubtedly be altered. Some researchers do, however, suggest that forests and their products are and will continue to be valued, in part because they symbolize cultural cohesion. The call for reclaiming viable aspects of traditional thoughts on forests should not be equated to romanticism with the past. The fact is that there is no culture or group of people who can totally sever themselves from their past. The past can serve as a teacher and even as a midwife of new culture. The African traditional past is not totally useless. If there are things that inspire and can contribute to environmental protection, they need to be harvested and re-cultivated. In the African past, there were harmful practices that degraded the Earth, so also there were practices that protected the Earth. The challenge before African scholars is to retrieve what is viable and still relevant and discard what is obsolete. In essence, this chapter is not an endorsement of every form of beliefs and practices associated with trees and forests. However, if many of the African beliefs and practices aforementioned were to be revitalized, refined and reconceptualized and enhanced with further scientific data, it would greatly help in ecological preservation within and outside Africa. It should be concluded that it is imperative to rethink the wholesome condemnation of African cultural beliefs and practices. When this is critically done, it will be seen that there are viable gems that Africa can bring to the global marketplace of ideas that can help to combat climate change and environmental crises.

African eco-philosophy on forests 175

Note 1 See also articles 8(1), 11(1), 12, 25 and 33 of the United Nations Declaration on the Rights of Indigenous Peoples, 2007; the preamble of the Declaration also instructively provides that “Recognizing that respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.”

References Adu-Gyamfi, Y. 2011. “Indigenous Beliefs & Practices in Ecosystem Conservation: Response of the Church.” Scriptura 107: 145–155. Alun, J. 2005. The Secret of the Totem. New York: Columbia University Press. Ayanda, J. 2010. “Incorporating Environmental Impact Assessment in the Nigerian Planning Process: Need and Procedure.” Third World Plan Rev 10, no. 1: 51–62. Berkes, F. 2003. “Rethinking Community-based Conservation.” Conservation Biology 18, no. 3: 621–630. Berry, T. 2006. Legal Conditions for Earth Survival. Evening Thoughts: Reflecting on Earth as Sacred Community. Berkeley, CA: Sierra Club and University of California Press. Brandon, K. 2014. “Ecosystem Services from Tropical Forests: Review of Current Science.” CGD Working Paper 380. Washington, DC: Center for Global Development. Online: www.cgdev.org/publication/ecosystem-services-tropical-forests-review-currentscienceworking-paper-380. Burdon, P. 2010. “Wild Law: The Philosophy of Earth Jurisprudence.” Alternative Law Journal 35, no. 2: 62–65. Cassier, E. 1992. An Essay on Man. New Haven, CT: Yale University Press. Clarke, J. 1999. Building on Indigenous Natural Resource Management, Forestry Practices in Zimbabwe’s Communal Lands. Harare: Zimbabwe Publishing House. Clemence, H. and V. Chimininge. 2015. “Totem, Taboos and Sacred Places: An Analysis of Karanga People’s Environmental Conservation and Management Practices.” International Journal of Humanities and Social Science Invention 4, no. 11: 7–12. Cullinan, C. 2011. Wild Law: A Manifesto for Earth Justice, 2nd ed. White River Junction, VT: Chelsea Green. Dagba, B.I., L.N. Sambe and S. Shomkegh. 2013. “Totemic Beliefs and Biodiversity Conservation among the Tiv People of Benue State, Nigeria.” Journal of Natural Science 3, no. 8: 145–149. David, E. 2016. “Importance of Forest and Trees in Sustaining Water Supply and Rainfall.” Nigeria Journal of Education, Health and Technology Research 8: 273–280. Deckers, J. 2004. “Christianity and Ecological Ethics: The Significance of Process Thought and a Pan Experientialist Critique of Strong Anthropocentrism.” Ecotheology 9, no. 3: 359–387. Dennis, M. 2013. “The Proverb; A Preserver of Shona Traditional Religion and Ethical Code.” Journal of Pan African Studies 6, no. 5: 132–143. Duri, F. and J. Mapara. 2007. “Environmental Awareness and Management in Pre-Colonial Zimbabwe.” Journal of Geographical Research 1, no. 2: 98–111. Eneh, O. 2010. “Managing Nigeria’s Environment: The Unresolved Issues.” International Journal of Environmental Science and Technology 4: 250–263. Federal Ministry of Environment. 2006. National Policy on the Environment. Abuja, Nigeria: Federal Ministry of Environment.

176

Ngozi Finette Unuigbe

Giddy, P. 2019. “Environmental Ethics in the Context of African Traditional Thought: Beyond the Impasse.” In African Environmental Ethics. A Critical Reader, edited by Munamato Chemhuru, chap. 4. New York: Springer. Ikeke, M. 2013. “The Forest in African Traditional Thought and Practice: An Ecophilosophical Discourse.” Open Journal of Philosophy 3, no. 2: 345–350. Infield, M. 2001. “Cultural Values: A Forgotten Strategy for Building Community Support for Protected Areas in Africa.” Conservation Biology 15, no. 3: 800–802. Kanu, I.A. 2015. A Hermeneutic Approach to African Traditional Religion, Theology and Philosophy. Jos: Augustinian Publications. Kideghesho, J.R. 2008. “Co-existence between the Traditional Societies and Wildlife in Western Serengeti, Tanzania: Its Relevancy in the Contemporary Wildlife Conservation Efforts.” Biodiversity and Conservation 17, no. 8: 1861–1881. Kiros, T. 1992. Moral Philosophy and Development: The Human Condition in Africa. Columbus, OH: Ohio University Press. Nir, D. 2005. “Critical Examination of the Jewish Environmental Law of Bal Tashchit Do Not Destroy.” Georgetown International Environmental Law Review 18: 335–354. Obediah, D. 2015. Traditional Taboos Defined: Conflict Prevention Myths and Realities. Bindura, ZW: Bindura University Press. Ogungbemi, S. 1997. “An African Perspective on the Environmental Crisis.” In Environmental Ethics: Readings in Theory and Application, 3rd ed., edited by Louis P. Pojman (2001), chap. 38. Belmont, CA: Wadsworth Publishing Company. Pelizzon, A. 2015. “Transitional Justice and Ecological Jurisprudence in the Midst of an Ever Changing Climate.” In Current Issues in Transitional Justice, edited by Natalia Szablewska and Sacha-Dominik Bachmann, chap. 13. New York: Springer. Peterson, R.B. 2004. “Central African Voices on the Human-Environment Relationship.” In R.S. Gottlieb (Ed.), This Sacred Earth: Religion, Nature, Environment, 2nd ed, 168– 174. New York: Routledge. Saj, T., C. Mather and P. Sicotte. 2006. “Traditional Taboos in Biological Conservation: The Case of Colobus Vellerosus at the BoabengFiema Monkey Sanctuary, Central Ghana.” Social Science Information 45, no. 2: 285–310. Salafky, N. and E. Wollenberg, E. 2000. “Linking Livelihoods and Conservation: A Conceptual Framework and Scale for Assessing the Integration of Human Needs and Biodiversity.” World Development 28, no. 8: 1421–1438. Tangwa, G.B. 2006. “Some African Reflection on Biomedical and Environmental Ethics.” In A Companion to African Philosophy, edited by Kwasi Wiredu, chap. 30. Oxford: Blackwell Publishing. Thomas, W. 2003. “One Last Chance: Tapping Indigenous Knowledge to Produce Sustainable Conservation Policies.” Futures 35: 989–998. Workineh, K. 2015. “African Environmental Ethics, Indigenous Knowledge, and Environmental Challenges.” Environmental Ethics 37: 387–410.

Part 4

Challenges in the transition to ecological law

12 Green(ing) legal theory Social logics and their re-formation Michael M’Gonigle1

The law locks up the man or woman Who steals the goose from off the common But leaves the greater villain loose Who steals the common from off the goose. This anonymous seventeenth-century verse speaks to the English crofters whose overlords enclosed the common lands as private property so as to capitalize on the growing wool trade with the continent. Similarly, when the emerging states of Europe encountered the resource-rich New World, they dismissed resident Indigenous cultures as too “primitive” to govern their “empty” landscape—and then claimed it as their own. Through centuries of such internal and external colonization, physical dispossession provided the foundation upon which the modern state developed. Its institutional expression was the unilateral assertion of sovereignty, drawing on what French philosopher, Jacques Derrida, called ipseity, “the power that gives itself its own law.”2 By freeing its possessors from external accountability, ipseity provided the narrative for the development of the larger liberal order that now sets the conditions of earthly possibility. Liberal jurisprudence (including Environmental Law (EL)) is a pillar of this statist order. There the self-referentialism of ipseity manifests in the formalized intentionalism that creates what might (appropriately) be called the “legal law.” However, behind it all—colonization, sovereignty, ipseity, and the legal law—is a larger, evolutionary jurisprudence that infuses the history and inhabits the architecture of the global present. I call this the “social law” because it emanates not from human intention (at least, not directly) but from the “logics” of a society’s historical creations, its “animations.” From the medieval galley to the modern automobile, merchant trade to the iPhone, political parties to the courthouse—countless animations provide the generative context for the “power that gives itself its own law.” Yet they are unrecognized and unacknowledged as law. The primary task of green legal theory (GLT) is to explicate this social law that, despite the claims of legal law, drives the liberal order and the problematic of planetary health and survival. This chapter begins by contrasting the philosophical foundations of liberal and green legalism. It then examines how the law-giving power of the liberal order

180

Michael M’Gonigle

shaped environmentalism and environmental legal law in the 1960s and 1970s and contrasts that history with the contemporaneous development of both Critical Legal Studies (CLS) and a diversity of radical socio-ecological movements. The chapter then considers how the “hegemony” of liberal ipseity and its legal law eased the world into the Anthropocene—and now impedes its escape. After discussing the many elements of “greening” legal theory, the chapter concludes with a substantive vision of where a new “green” social/legal theory might lead.

Unthinking liberal law In the philosophical tradition of the West, “grounded” social relations are irrelevant. Instead, its lodestar has long been the unencumbered, self-interested “rational man” who embodies the law of “nature.” As the seventeenth-century colonial administrator and philosopher John Locke argued: The state of nature has a law to govern it, and which obliges everyone: and reason which is that law, teaches all mankind, who will but consult it, that being equal and independent, no one ought to harm another in his life, health, liberty or possessions. (1980 [1689], chap. II, 9) Such propertied men entered into what the earlier English philosopher, Thomas Hobbes, metaphorically characterized as a “social contract” that created the allpowerful sovereign state. Following the English Civil Wars, Hobbes saw this state as essential to overcoming the “state of nature” that is marked by the “general inclination of all mankind, a perpetual and restless desire of power after power” (1981 [1651], chap.11, 161). Hobbes and Locke are members of an intellectual lineage that, from Plato to Descartes, Kant to Rawls, naturalized Western rationalism and individualism, and established the narrative of liberal ipseity and its constitutional imaginary. This tradition provided the justifications for its core animations, especially the sovereign state and its liberal duopoly of a (representative) democracy and a (capitalist) economy, as well as the state’s processes of “positive” (i.e. neutral, scientific) lawmaking. As in science and technology, positive law pays obeisance to neither the natural (physical) world nor the eco-cultural traditions long constituted within it. Instead, as Yale legal scholar Paul Kahn acknowledges, “reason and will” are generally seen as “the twin sources of a legitimate legal order” (1999, 7). All social orders have laws that are explicit and visible, and rules that are not. The latter are not found in some playbook hidden behind the unnumbered façades of a department of commerce or constitutional affairs, yet they actively “constitute” social relations. To think of such rules as law, however, demands not just a re-definition of law but its re-conception. This is law as “logics” by which I mean the “inherent/emergent characteristics of any socially constructed animation that tend to propel its evolution in dynamic relations with its context.” From the Latin, anima, I impute a motivating “life force” to “inanimate” creations insofar as their

Green(ing) legal theory 181 existence within a human context enables, encourages and even locks in evolutionary developments. For example, the advent of the automobile (itself the culmination of a long evolution) re-formed human movement and the nature of social organization. Such animations have huge constitutive social power; over time, they remake the world. This is evident in the ironic corporate logo, “Toys R Us.” Animations and their logics generate “social laws” that work as “authoritative processes of social self-constitution.” Here, the linchpin term is “self.” In the liberal order, legal laws derive legitimacy and authority through the procedural (“positive”) rationality of the individual “selves” who produce the law through a collectively self-legitimated political context. Where the social logics of diverse animations provide the constitutive contexts that shape these “rational” selves— their awareness, intentions and actions—they become “authoritative.” In the process, the apparently purposive self (both individual and collective) may become a bracketed [self]. By examining the animations and social laws that work to form the individual or collective self or [self], GLT addresses their substantive legitimacy as truly self-constituting selves. This is the conundrum of the Anthropocene—how to create the conditions for new animations that, in turn, can generate selves freed from the domination of disabling animations and logics. Envisioning such a circular yet evolutionary process resonates with ancient thinking. For example, Rousseau characterized the “general will” as free from “structures and a dynamic which [citizens] neither understand nor control” while also not reflecting a mere “concatenation of individual decisions but a genuine common purpose” (Taylor 1979, 147–148). This also resonates with at least the ideal of the early Athenian demos as possessing its own collective wholeness, its own “general will” (Anderson 2018). It also harkens back to Indigenous processes that controlled new animations in light of how they might shape social evolution as far ahead as the “seventh generation.” With its self-referential philosophical orientation and lack of concern for the social law, the ipseity of the liberal order and its focus on the legal (rather than the social) law facilitated the development of what I call today’s global “nomosphere.” Nomos is the Greek term for “law” but (again) understood broadly as a “spatially-defined, cultural/material ordering of the legal/social whole.”3 Under the cover of ipseity (ever active in the self-referential lingo of “progress,” “innovation” and “moving forward”), the global nomosphere evolved into the massive quantum and momentum of structural power that both dominates the processes of global self-constitution and co-opts all re-formative challenges. The result is ironic in that, in the liberal order: being and thinking with and through law [has never] been so entrenched [but] . . . people obtain freedom under the law only at the unnoticed cost of being already legal in their being and thinking. Law guarantees them freedom but the thinking behind their freedom guarantees them serfdom. (Ben-Dor 2007, ix) Thus, contra Hobbes and Locke, the liberal order arose and continues not according to some natural law but from its ipseity of self-referential, taken-as-given

182

Michael M’Gonigle

premises (abstract rationality, individual autonomy, self-interest, social competition) and their material embodiments (property, capitalism, class, corporations, technology) as well as the diverse cultural processes that constitute an implicit “police order” (Ranciere 2010). Certainly, legal laws work to protect aspects of the social and natural environment yet do so within the context of a liberal state and commitments that do not necessarily foster flourishing, socio-ecological selves. Indeed, as it evolved in the “West,” the state culminated not in what German philosopher Georg Hegel, foresaw as a triumphant global material/cultural geist (spirit), but in its transcendent opposite—the nomosphere of the “end times.” Unlike EL, EcL responds to this situation by “naturalizing” a substantive reference point for the legal law—the physical ecology. Similarly, GLT puts ecological health at its core and the social logics that produce and infuse, or erode, it. Thus, GLT addresses the internally constitutive character of socio-ecological health, as compared with the legal laws that relate to it from the outside. Necessarily, GLT addresses the hegemonic power that, despite the avowed rationality and intentionalism of the legal law, leads all “reforms” into the bracketing processes of liberal animations (M’Gonigle and Ramsay 2004; M’Gonigle 2008; M’Gonigle and Takeda 2013). As Paul Kahn admonishes legal scholars: A new discipline of legal study must abandon the project of reform. . . . We cannot study law if we are already committed to law. We cannot grasp the law as an object of study if the conceptual tools we bring to the inquiry are nothing but the self-replication of legal practice itself. (1999, 7, 27) Indeed, to describe a legal approach as environmental or ecological or green will make no difference—unless it is different. As the Critical Theorist, Theodor Adorno, warned years ago about the growing institutional capacity for hegemonic co-option: “Only he who recognizes that the new is the same old thing will be of service to whatever is different” (1942, 96).

Crits, enviros and the hegemony of law Until recently, no “natural” point of culmination existed for the contradictions of the liberal order. Time and again, its adaptive powers outran all challenges, but in doing so, they always demanded one thing: excess. More land, more resources, more money, more people, more power. This was liberalism’s perpetual process: growth, crisis and resolution. Finally, however, that process has revealed the simple truth that its seemingly “open” context was actually closed. In the nomosphere, all can now see that the planet has no excess capacity. It is full. Material growth has become a negative process; it is corrosive, not additive. Nevertheless, co-option abides. In the 1960s, the growth contradiction of the liberal order was apparent although the planet then was far healthier, the quantum of animationist power smaller and environmental erosion less pervasive. Nevertheless, driven by reactions against

Green(ing) legal theory 183 the mass conformism of the 1950s and its burgeoning consumerism, visible racism, social inequality, rampant militarism and war, and declining environmental quality, a “legitimation crisis” seized that decade (Habermas 1975). A youthful enthusiasm emerged for taking power and “creating alternatives.” Inspired by the “Frankfurt School” of Critical Theory, a “New Left” emerged that explicitly challenged social domination with strategies that integrated theoretical inquiry into practical action. The seminal book of the era was Herbert Marcuse’s 1964 One-Dimensional Man.4 “New social movements” flourished: civil rights in the American South, student protests from Paris to Berkeley, social justice alliances and constituencies creating ecologically based “alternatives” to capitalist growth—“alternative technology,” cooperative economics, “back to the land” movements, intentional communities, bioregional devolution and so on. Motivated not to reform the law but to re-ground power, “deep” and “social” ecologists criticized the “shallow environmentalism” of professionals (including lawyers) working in the urban corridors of power. Many movements—for environmental justice, Indigenous rights, community-based development, “small is beautiful” and local self-reliance—shared a decentralist commitment to communal re-empowerment. The ambitions of that era far exceeded those of social movements today. In the 1970s, Critical Legal Studies (CLS) drew together new legal scholars (socialists, feminists, critical race theorists and postmodernists) disaffected by the methodological formalism of liberal jurisprudence. While Critical Theory integrated radical political theory into activist resistance, CLS brought a new awareness of legal biases (particularly those of race, class and gender) into legal practice (Williams 1988). CLS is arguably the most important legal movement in the past century as it opened a door to theorizing about law that liberal jurisprudence had long kept shut. Still, CLS scholars “did not deviate” from the “virtually ubiquitous acceptance of the social as law’s relational other [eschewing the issue of] what rules (discursive or otherwise) set the terms for conflicts over the production of rules” (Tomlins 2007, 59). Indeed, many saw an irony in the professional orientation of “left legalism” because it undermined the potential for a broader “left critique” (Brown and Halley 2002). CLS was not an environmental movement. Wilderness preservation, swimmable urban rivers, air quality and endangered species held little appeal. Meanwhile, EL was not a critical movement. Supported by the urban middle class, it piled up legislative, administrative and judicial reforms, but always within the statist project of managed capitalism and economic growth. Indeed, by the 1980s, EL’s mission explicitly embodied the economistic goal of “internalizing market externalities” that could make capitalism work better, not replace it. Still today, EL’s responses to climate change depend on legislated incentives (carbon taxes), new technologies (“clean” energy, electric cars), gradualist procedures (environmental assessments, consumption taxes, production incentives) and new rights (e.g. the rights of nature) bequeathed by the state. Meanwhile, critical legal scholars never cared enough about EL to theorize it in ways that might have informed it with a left critique. Only in the past decade has a wide range of Left theorists and lawyers begun to explore the underlying radical challenges posed by the systemic

184

Michael M’Gonigle

inattention to the natural world. Even so, “radical” platforms such as the Green New Deal still rest on the regulatory potential of achieving power within a beneficent liberal order. CLS had an informal motto, “Law is politics,” that spoke to legal change through political institutions. CLS scholars deconstructed law for its political content but treated the (political) world as essentially indeterminate and so open to strategic interventions through the law. As Roberto Unger expressed it, law’s “formative context” reflected a “doctrinal perspective that puts its hope in the contrast of legal reasoning to ideology, a philosophy and political prophecy [that] ends up as a collection of makeshift apologies” (1986, 11). CLS scholars saw their goal as ameliorating oppression and remaking law’s formative contexts through, for example, public interest litigation (Hunt 1993). Indeed, had CLS theorists treated the political context as closed to legal intervention, they risked attack as oldfashioned (i.e. Marxist) determinists who believed that underlying structures of “social reproduction” rendered law a mere “epiphenomenon.” CLS was thus poised between challenging law as a substantive reflection of elite power and the status quo while embracing it as the vehicle for structural change. CLS, argued David Jabbari “is ultimately hoisted on its own Critical petard” (1992, 508). As the early CLS scholar, David Trubek, wrote, the CLSbased Law and Society movement created “a new object of study and a new domain of knowledge, [but] it did so within a ‘legally-constructed’ frame [that] necessarily reflects the needs and interests of legal elites” (Darian-Smith 2013, 102). By failing to address the emergent logics/dynamics of the state that creates the laws, they extended the legal/social dichotomy.

Neoliberals, Greens and the pursuit of re-formation GLT draws on Critical Theory to turn the CLS credo on its head—from “law is politics” to “politics is law.” This reversal does not merely re-state the old equation but suggests that state-based politics embodies its own constitutive logics, and that these play out as law. The new equation recognizes the artificiality of the legal/social boundary but does so by addressing the core logic of the state. This is the self-justifying logic of centralized sovereign authority with its ipseistic, constitutive power over all physical space and its human and nonhuman populations. This logic manifests in a raft of dynamics that, for example: erode sub-state cultural authorities and displace their territorial status; objectify remote landscapes for their disembodied “resources;” override the constraining implications of the spatial logics of watersheds, wildlife, local cultures and communities; prize animations that enable accumulative economic flows to the centers of power; and support institutions that assert managerial control from the top—extractive industries, agribusiness, global cities, rapid high-volume transportation, industrial supply chains, commodity exchanges and so on. By accommodating these logics and practices, liberal law long facilitated the animations and the apparatuses of concentrated power that came to define the global nomosphere. Consider, for example, that core legal institution, the judiciary.

Green(ing) legal theory 185 Under the rule of law, it deploys reason to make judgments that explicitly (that is, with intention) shape legal rules. But being itself a constructed animation with its own logics, the judiciary manifests dynamics that shape outcomes implicitly. Even where its intention is legal equality, the logics of its elite expertise, liberal state/capitalist ideology and high-priced access “characterize our judicial system far better than any notions of justice, objectivity, expertise or science” (Kairys 1990, 8). The courthouse delivers instances of legal justice at the same time as it reinforces the systemic logics of social domination. Similarly, creating an institution such as the World Trade Organization to “regulate” global trade inherently locks the world not into “trade justice” but into the power logics of globalization. To recognize the constitutive power of formative contexts invites legitimate concerns about social determinism—yet this pertains only where social actors cannot see and effectively contest these contexts. Again, this is the core conundrum with which GLT engages—the bracketed [self] vs. the empowered self. Admittedly, structural contestation is difficult as the logics of constructed animations and contexts develop gradually over time, reinforce their anima through continuous micro-performances and harden their power in the architecture of daily life. In contrast, many liberal ideologues saw Hegel’s “end of history” as having arrived with the Kennedyesque technocracy of the early 1960s and, then again, in the Reagan/Thatcher globalization of the 1980s. But neither utopia was long-lived, the first descending into war (Vietnam) and the second into the “conflict of civilizations” (with Islam). As it stands, that progression of Hegel’s geist more accurately describes the liberal order’s dystopian opposite—the existential reality of the climate crisis and the nomosphere’s never-ending erosion of the natural world (evident in a now-emerging global pandemic). Nevertheless, liberal domination abides with managed reform as the only option, “the winning of state power” as the only strategy and its exercise as the “assassin of hope” (Holloway 2002, 17). Had CLS and EL put less faith in statist reforms, and instead addressed the momentum of social logics, neither movement could have avoided the other. After all, the systemic subsidies provided by the consumption of the natural world were obvious to anyone who cared to look. What was missing—then as now—was a re-formative strategy situated in a social and ecological theoretical frame. At the time, a critical cultural political economy existed with which CLS was familiar but EL was not. However, no ecological political economy existed except on the margins of social activism. Meanwhile, both CLS and EL reflected the era’s embrace of “social construction” in a form that “reinforce[ed] the nature/society dichotomy by . . . failing to conceptualize the biophysical environment as an independent causal force” (McLaughlin 2012, 249). Rather than sailing together, the two socio-legal movements passed each other like ships in the night, neither seeing the light of the other. Both remained hostage to the reification of physical space represented by the territorial state (Manderson 1996), both missing the chance to find the shared destination that critical social theorists had earlier mapped out—that of “unthinking modernity” and its liberal project (Stamps 1995). As Adorno had warned, what was new was the “same old thing.” It still is.

186

Michael M’Gonigle

In contrast, corporatists recognized what this absent movement did not address—the closing of planetary space—and they sought to re-form the global economy but in ways that could keep the “same old thing” going for as long as possible. Attacking the shackles of progressive postwar liberal reforms, they opened up a new era of economic accumulation through re-formations that divorced the (elite) accumulation of financial capital from the (worldly) production of material goods. For 40 years now, this fracture has riven the planet, generating financial wealth for a couple of generations while driving its erosive effects down and away in ways that entrenched social and environmental precarity for the long term. In short, through their own approach to “politics as law,” “neoliberals” re-formed the “old” statist model into the new constitutive nomosphere. As Renato Ruggiero, Director-General, World Trade Organization, stated in the late 1990s: “We are no longer writing the rules of interaction between separate national economies. We are writing the constitution of a single global economy.”5 As part of this, neoliberals everywhere sought to “undo the demos” (Brown 2015) by reconstituting the cultural collective in the mode of fully self-seeking economic actors bereft of countervailing democratic, let alone communal or territorial, allegiance. The resulting re-formations quickly attained the almost organic, self-generative power that propelled a new generation of illiberal fundamentalists to disdain environmental protection, workers’ rights, political accountability, human rights and the rule of law. In the 1960s and 1970s, the many non-legal social movements that had also sought larger re-formations did so as critical movements “from below” without the power of an establishment movement “from above.”6 In a last gasp, liberal progressives embraced the 1990s as the “turnaround decade” only to see their hopes fall victim to the neoliberal re-formation. And now . . .?

Hegemony and historical possibility The eclipse of EL/CLS was part of the triumph and tragedy of the sixties’ radicalism that posed a systemic challenge to modernist social logic at a time when many conditions for transformation still existed. Alternatives to capitalism existed, for example, in the “new international economic order” of dozens of Third World governments. Radical social movements that prized a new/old territorialism flourished throughout the First World in the decentralist “bioregional,” “back to the land” and the (then) Indian rights movements. The physical and cultural space still existed for being and living “differently,” long before the digital logics of total cultural and material penetration took hold. Neither climate change nor the pace of extinctions had yet taken off, and retrenchment did not encounter the reach and depth of nomospheric intransigence that re-formation faces today. That the nostalgia for that decade (Bingham 2016) continues a half-century later is more than mere romance. It recognizes an eclipse of historical possibility. Yet today, with no “outside” left into which to cast the physical externalities of liberal capitalism, revitalizing a “radical” movement to re-form the systemic logics of the liberal order remains essential to planetary health. This historical project can now be met only by recognizing the “illusory nature of the superiority of the

Green(ing) legal theory 187 West” and the “constitutional logic of modern society—as a set of structures and practices” (Dahms 2011, 254–255). This project will not emerge from any social power that exists today. Before considering a re-formative GLT, let me summarize the critical lessons from this history of EL. First, its uncritical commitment to legal reform bounded change within the co-optive processes of the capitalist state (Hay 1994). This had been a concern of the early German Greens who in the 1980s made a distinction between “realos” and “fundis” only to see the fundis shut down as the realos took the Greens into the party system of political reform. This co-option now represents the Green legacy worldwide. Second, without a theoretical attention to an ecological political economy (or, in today’s parlance, political ecology) as the basis for a re-formative agenda, EL and CLS failed to generate a shared, reconstitutive movement informed by the lessons of both social inequities and biophysical destruction. Instead, despite a raft of reforms, the golden years of CLS and EL witnessed the takeoff of both structural inequality and climate change. Third, with the liberal order on autopilot, its unsustainable accumulative economic and political logics drove the illiberal deconstruction that has followed the 1980s to this day. The result is a teleological crisis facing EL, EcL and GLT: the “real purpose” of legal reform.

Performative ontology; re-formative animations If liberal lawyers confront a crisis of purpose, humanity in the Anthropocene confronts a parallel crisis of ontology: the “truths” of its reality are up for grabs. Both crises are central to GLT and its claim that the old humanist questions of who rules and how, must make space for a new post-humanist concern for what rules and how. For GLT, this extends the attention paid to the constitutive power of nonhuman living things (e.g. animals, insects, bacteria and so on) to the created nonliving “whats” and their logics—physical things and structures that work beyond human intention.7 Whether it is automobility or digital screens or overnight delivery, animations have their own non-living “life force” (anima) that constitutes the world and we who live in it—and these animations will resist being re-formed through statist half measures such as carbon taxes, or rights for nature or even a Green New Deal. To see how a single animation works as a “constituent power,” consider a prosaic, seemingly trivial, example—the lawn. Like a formal garden, the lawn is a physical/human construct that is fundamentally “unnatural” in the physical environment. As an animation, its logics reflect this constructedness. At one level, these logics are cultural; as an aesthetic, the lawn signals wealth and luxury, a thing of constructed beauty, something to be desired. Its logics have played out in different historical periods and geographic locations, and they remain a pillar of the American Dream. This is a self-perpetuating animation with its own dynamic and demands. Early on it needed land, labor, capital and resources (e.g. water) and, in recent years, chemical fertilizers and pesticides, specialized machinery, energy and professional tending. All this entailed legislation, from zoning laws

188

Michael M’Gonigle

to environmental regulations, that enabled complex assemblages of suppliers and advertisers, real estate developers and agents, resource providers and regulators. The result is that the lawn became a defining post-human assemblage in shaping the spatial character of the city with its patterns of sprawl development, freeways and automobility (Kuntsler 1993; Kolbert 2008). Another more obvious animation is the corporation. It evolved over the centuries to enable the colonial logic of displacement (e.g. of communal economies that recirculated wealth locally) with replacement (by capitalist relations that extract and accumulate wealth for remote elites). Through the centuries, the corporation externalized costs into workers’ slums and clear-cut landscapes as the flip side to “internalizing” profits into distant banks. Now, state-enabled growth maintains the economic flows needed to service the expanded demands of the modern corporation and its corporatist economy. These extractive logics infuse the globe with what the constitutional lawyer, Joel Bakan (2004), described as the corporation’s “psychopathic” character. This is a pervasive systemic presence—and it effectively transcends human agency. After all, what CEO or Minister of Industry could keep his job if he decided to take resource depletion or climate change seriously by reducing production? From lawns to corporations, cars to credit cards, fishing trawlers to container ships—the logics of such animations have generated a chain of social entrapment. Indeed, from specific animations to productionist “assemblages” to entire institutional “regimes” of corporate management, to the cultural/material nomosphere that drives the globe’s existential trajectory, social law rules. Was there ever a time when the trajectories of the lawn or the car or the corporation could have been thwarted? Likely not. Certainly, the creation of new animations—from the printing press to the commercial sewing machine to the industrial division of labor—often sparked opposition, debate and resistance. But in an open world, such opposition usually fell victim to profit and growth, progress and repression. Few critics had the ability to generate a different cultural ontology—different truths—that could shape different patterns of collective social evolution. This remains true in the Anthropocene where the nomosphere manufactures the collective oblivion and acquiescence needed for continued financial appropriation. In the 1980s, global financialization made computerization inevitable. Forty years on, maintaining the nomosphere in a closed world now makes almost inevitable the turn to the logics of the new “efficiencies” offered by a world of AI and robotic animations (Zuboff 2019). Even the pandemic that has erupted as I finish this chapter provides one more opportunity to advance this disabling animationist trajectory. Who and what can overcome it?

Ecosystem revolution This chapter has addressed the scholarly challenge of “greening” legal theory (beyond EL) by addressing the larger jurisprudence of the social law and the broad re-formations it entails. Here I will return to the ecological premises on which EcL and GLT converge. Of particular importance for GLT is the socially-constitutive

Green(ing) legal theory 189 role of the “self-sustaining socio-ecosystem.” By that phrase I mean an ecologically scaled, socio-physical community that self-constitutes through animations that nurture that community’s health and flourishing, and that does so in reciprocity with other socio-ecosystems doing the same. Such entities occupied the Earth for millennia through a diversity of constructed and controlled animations that shaped the planet’s socio-ecological evolution. Liberal naturalism eviscerated this “grounded” set of relations in the pursuit of a “higher” (transcendent) sovereignty. As opposed to the statism of Hobbes et al., and the reformism of the legal law, “re-grounding” social power in the socio-ecosystem provides a “natural” legitimacy that challenges liberal ipseity. It is telling that the major critique of shallow environmentalism in the 1960s–1980s came from back-to-the-land bioregionalists, deep ecologists, Indian rights activists and Third World communities who envisioned just such a re-grounding of social power through the “re-inhabitation” of place. Rekindling such a re-evolutionary constitutionalism is everywhere the logical (in both senses) antidote to the momentum of the nomosphere’s animationist power. A prerequisite for re-inhabitation is the ability to reimagine the constitutive processes of social animation on at least four levels—philosophical, political, economic and cultural. Philosophically, the socio-ecosystem provides the dialectical context for a situated ontology that, by its nature, addresses the cultural/material relations necessary for sustaining life in a limited environment (M’Gonigle 2000). This context would (literally) “re-place” the liberal philosophical referent of the “rational individual” with its ecological other—the “ethical relational.” Even the most basic understanding of physical (and social) ecology makes clear the ipseistic fallacy of a self-referencing starting point like the rational individual who is somehow prior to the social/natural world. Instead, the “ethical relational” acknowledges that “individuals” always develop through the preexisting, collective contributions of culture (history, language, communal values, social training), material relations and natural experiences. As a result, by their nature, individuals owe a natural/ethical responsibility to creating conditions that will foster that communal development. This approach overcomes the untenable separation of the legal from the social. In so doing, it expands the realm and nature of “due process.” For example, the goal would not be to “represent” future generations by grafting reformist constraints onto existing interests. Instead, the reality would be to embed re-formative logics into new animations, the logics of which would constitute communities of ethical relationals, and do so in the present. Politically, giving primacy to the socio-ecosystem challenges the territorial absolutism of the modern sovereign state. In fact, the “state” has long embodied a diversity of practical forms (Jessop 2016). Moreover, it achieved formal recognition in its modern form only in the seventeenth century, and it gained global primacy only with (at least “formal”) decolonization after WWII. Yet, over this whole history, the modernizing state has abetted a physical dysfunction that, in the Anthropocene, renders obsolete its ipseistic claim to sovereign legitimacy. At best, state legitimacy in a full world can exist only in a conditional form insofar as it is able to re-ground political and economic governance in self-sustaining

190

Michael M’Gonigle

socio-ecosystems. These, in turn, would operate within a framework of global socio-ecological confederalism. Working as fully democratic ecosystems they would give constitutive power to (and demand accountability from) human and post-human inhabitants and animations. In her study of an Indigenous community, the Algonquin of Barriere Lake in northern Quebec, Shiri Pasternak (2017) elucidated an alternative to Derrida’s “ipseity” that she calls “grounded authority.” This emanates from the place (not just the power) that generates “the authority to have authority,” the “jurisdiction” where one is able to “speak” (dicto) the “law” (juris). Though it faces the seemingly Herculean task of overcoming today’s statist intransigence, “grounding authority” in authoritative socio-ecological jurisdictions draws on a vast array of existing alternatives. Economically, many forms of cooperative organization can be drawn on to replace disembodied capital and its logics of extraction and accumulation. These existed in Indigenous territories and, indeed, in diverse communal entities worldwide that, through practices of “reciprocity and redistribution,” ensured the equitable recirculation of wealth throughout the local population (Polanyi 1944). Similarly, the beneficent political logics of the “public trust” have long been acknowledged as a vehicle for sovereign re-grounding (Wood 2013). Indeed, years ago, my research group at the University of Victoria developed the “community ecosystem trust” as a vehicle to devolve power in just these ways (M’Gonigle et al. 2001). In contrast to the liberal order’s continuing evolution with the global nomosphere that all but guarantees a planetary dystopia, GLT envisions a constitutive re-evolution in the social law as the basis for long-term human and natural flourishing of a flourishing planet. Unfortunately, the legal law and the logics of hierarchical power do not deconstruct themselves in light of lessons learned. As it was centuries ago, so it remains today: And geese will still a common lack Till they go and steal it back.

Notes 1 I would like to acknowledge the unrelenting assistance of my two editors, Carla Sbert and Kirsten Anker, and the helpful comments of Mark Zion. 2 Rogues, Stanford: Stanford University Press 2005, pp. 10–12. Cited in Christopher Bracken, “Reconciliation Romance: A Study in Juridical Theology,” Qui Parle, Fall/ Winter 2015 14:1, p. 2. Emphasis in original. 3 I coined this term drawing on the German political theorist, Carl Schmidt (1954), to describe a global force field that exists (in a quasi-Hegelian sense) as a cultural mind/ spirit (geist) with an associated material assemblage of driving physical animations. This meaning differs from how the term had, it turns out, to have been used earlier to describe the legal systems of diverse, spatially defined communities. See Delaney (2010). 4 Marcuse’s arguments against the “commodification” that works to constitute citizens as one-dimensional “consumers” has obvious implications for my discussion of “animations.” 5 This statement has been oft-quoted. See M’Gonigle (1999).

Green(ing) legal theory 191 6 The contestation between socially re-formative movements (whether from above or below) again supersedes the association of “regulatory” processes with formalized (i.e. institutional) law reform. See Cox and Nilsen (2014). 7 These questions raise the issue of GLT’s relationship to actor network theory (ANT) that I have not explored in this chapter, nor drawn upon more generally.

References Adorno, T. (1942) 2003. “Reflections on Class Theory.” In Can One Live After Auschwitz: A Philosophical Reader, edited by Rolf Tiedeman, chap. 4. Stanford: Stanford University Press. Anderson, G. 2018. The Realness of Things Past: Ancient Greece and Ontological History. Oxford: Oxford University Press. Bakan, J. 2004. The Corporation: The Pathological Pursuit of Profit and Power. Toronto: Penguin. Ben-Dor, O. 2007. Thinking about Law: In Silence with Heidegger. Oxford: Hart Publishing. Bingham, C. 2016. Witness to Revolution: Radicals, Resisters, Vets, Hippies, and the Year America Lost Its Mind and Found Its Soul. New York: Random House. Brown, W. 2015. Undoing the Demos: Neoliberalism’s Stealth Revolution. New York: Zone. Brown, W. and J. Halley, eds. 2002. Left Legalism/Left Critique. Durham, NC: Duke University Press. Cox, L. and A. Nilsen. 2014. We Make Our Own History: Marxism and Social Movements in the Twilight of Neoliberalism. London: Pluto. Dahms, H. 2011. The Vitality of Critical Theory. Bingley, UK: Emerald Group Publishing, Current Perspectives in Social Theory. Darian-Smith, E. 2013. “Producing Legal Knowledge.” In Laws and Societies in Global Contexts, edited by Darian-Smith. Cambridge: Cambridge University Press. Delaney, D. 2010. The Spatial, the Legal, and the Pragmatics of World-making: Nomospheric Investigations. London: Routledge. Habermas, J. 1975. Legitimation Crisis. Boston: Beacon. Hay, C. 1994. “Environmental Security and State Legitimacy.” In Is Capitalism Sustainable: Political Economy and the Politics of Ecology, edited by M. O’Connor. New York: Guildford. Hobbes, T. (1651) 1981. Leviathan. Edited by C. Macpherson. Hammondsworth, UK: Penguin. Holloway, J. 2002. Change the World without Taking Power. London: Pluto. Hunt, A. 1993. Explorations in Law and Society: Toward a Constitutive Theory of Law. New York: Routledge. Jabbari, D. 1992. “From Criticism to Construction in Modern Critical Theory.” Oxford Journal of Legal Studies 12, no. 4: 507–542. Jessop, R. 2016. The State: Past, Present and Future. Cambridge, MA: Polity Press. Kahn, P. 1999. The Cultural Study of Law: Reconstructing Legal Scholarship. Chicago: University of Chicago Press. Kairys, D. 1990. The Politics of Law: A Progressive Critique. New York: Pantheon. Kolbert, E. 2008. “Turf War: Americans Can’t Live without their Lawns—But How Long Can they Live with Them?” The New Yorker, July 21, 2008. Kuntsler, J.H. 1993. The Geography of Nowhere: The Rise and Decline of America’s Manmade Landscape. New York: Simon and Schuster.

192

Michael M’Gonigle

Locke, J. (1689) 1980. Second Treatise on Civil Government. Edited by C. Macpherson. Indianapolis: Hackett. Manderson, D. 1996. “Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory.” Melbourne University Law Review 20: 1048–1071. Marcuse, H. 1964. One Dimensional Man. Boston: Beacon. McLaughlin, P. 2012. “The Second Darwinian Revolution: Steps Toward a New Evolutionary Environmental Sociology.” Nature and Culture 7, no. 3: 231–258. M’Gonigle, M. 1999. “An Emerging Global Constitution.” In Focus on Forests and Communities. (A publication of the POLIS Project on Ecological Governance prepared for the Seattle meeting of the World Trade Organization, November 1999). Victoria: Victoria University Press. M’Gonigle, M. 2000. “A New Naturalism: Is There a (Radical) ‘Truth’ Beyond the Postmodern Abyss?” Ecotheology 8(January): 8–39. M’Gonigle, M. 2008. “Green Legal Theory.” Okologishes Wirtschafton 4: 34–38. M’Gonigle, M., B. Egan and L. Ambus. 2001. “The Community Ecosystem Trust: A New Model for Developing Sustainability.” POLIS Project on Ecological Governance. Victoria: University of Victoria. M’Gonigle, M. and P. Ramsay. 2004. “Greening Environmental Law: From Sectoral Reform to Systemic Re-Formation.” Journal of Environmental Law and Practice 14: 333–356. M’Gonigle, M. and L. Takeda. 2013. “The Liberal Limits of Environmental Law.” Pace Environmental Law Review 30, no. 3: 1005–1115. Pasternak, S. 2017. Grounded Authority: The Algonquins of Barriere Lake Against the State. Minneapolis: University of Minnesota Press. Polanyi, K. 1944. The Great Transformation: The Political and Economic Origins of Our Time. Boston: Beacon. Ranciere, J. 2010. Dissensus. London: Continuum. Schmidt, C. (1954) 2003. The Nomos of the Earth: on the International Law of the Jus Publicum Europaeum. New York: Telos. Stamps, J. 1995. Unthinking Modernity: Innis, McLuhan, and the Frankfurt School. Montreal: McGill-Queen’s University Press. Taylor, C. 1979. Hegel and Modern Society. Cambridge: Cambridge University Press. Tomlins, C. 2007. “How Autonomous is Law?” Annual Review of Law and Social Science 3: 45–68. Unger, R. 1986. The Critical Studies Movement. Cambridge, MA: Harvard University Press. Williams, R. 1988. “Taking Rights Aggressively: The Perils and Promise of Critical Legal Thought for People of Color.” Law and Inequality 5, no. 2: 103–134. Wood, M. 2013. Nature’s Trust: Environmental Law for a New Ecological Age. Cambridge: Cambridge University Press. Zuboff, S. 2019. The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York: Public Affairs.

13 Lawyers and ecological law L. Kinvin Wroth*

Introduction The legal and regulatory framework of environmental law as we know it is unable to contain the pressures of increasing global warming, sea-level rise, resource extraction and development driven by economic and demographic pressures upon the Earth’s natural environment. Earth’s survival requires that the present regime of environmental law, in which human property rights set bounds on protection of the environment against such threats, must give way to a new regime—ecological law—in which the need for protection of the environment limits the scope of human property rights. Only this development will enable Earth and the many species that inhabit it to survive the rapidly increasing deterioration of the natural environment that is the culmination of centuries of human domination. Environmental law emerged as a separate field of practice and legislation in the late 1960s as a response to growing public concern for the threat that unchecked growth and development posed to the natural environment of the nation and the world. In the United States, this phenomenon resulted in a series of major federal enactments regulating both federal and private activity that threatened the environment, along with a variety of state laws that supplemented and extended the federal regime. Many academic institutions established environmental studies programs that focused on both the science and the policy of environmental protection. Law schools in particular brought the scholarship and activism of their faculties and students to bear in assisting—and perhaps more often prodding—governments to identify and rectify specific environmental harms. The command-and-control regulatory regime of environmental law has achieved notable successes on a case-by-case basis since the early 1970s. Yet that success may have lulled the public consciousness into thinking that threats to the environment are under control. Moreover, efforts of the present federal administration to limit the reach of existing regulatory agencies illustrate the political vulnerability threatening the future of that success. Most important, case-by-case success has not halted the continuing degradation of a natural environment beset by the forces described earlier. The emerging recognition of the limits of environmental law as presently understood and applied has led to a call for a seismic shift in the means for addressing

194

L. Kinvin Wroth

the continuing and increasing threats faced by the natural environment—a shift from environmental to ecological law. The scope and significance of that shift are summed up in these words from the introduction to a collection of articles intended to illustrate the current state of articulation and analysis of the concept of ecological law: [E]nvironmental law . . . allows human activities and aspirations to determine whether or not the integrity of ecological systems should be protected. [Ecological law] requires human activities and aspirations to be determined by the need to protect (and increasingly restore), the integrity of ecological systems. Ecological integrity becomes a precondition for human aspirations and a fundamental principle of law. (Bosselmann and Taylor 2017, xv–xvi) This chapter considers the problem of how to “get there from here” and advances the thesis that lawyers can play an essential role in “getting there” by developing and participating in a process for transition to the new regime in environmental law and in all areas of law that govern human activity and define institutional structure. The chapter considers specific examples involving the marine environment from US and international law and the realm of legal scholarship and teaching to illustrate the range of initiatives in which lawyers can engage in that role.

Litigation United States v. Milner, decided by the US Court of Appeals for the Ninth Circuit in 2009,1 provides an opportunity to consider ways in which lawyers in their professional roles in litigation can take steps to move us toward an ecological future. The Lummi tribe in the northwestern corner of the state of Washington had been granted upland lots and adjoining tidelands on the Straits of Georgia by an Executive Order of 1873 extending the reservation granted to the tribe by treaty in 1855. Subsequently, many of the upland lots were acquired by nonmembers of the tribe. Certain of those owners whose lots abutted the tidelands had, under a lease from the Lummi Nation, erected “shore defense structures” as protection against erosion and storm damage. When the lease expired in1988, the homeowners declined to renew it. By 2002, shoreline erosion had caused the mean highwater-line boundary of the tidelands to move shoreward to the point that some of the shore defense structures now sat on the Lummi’s tidelands. After the homeowners declined to remove the structures or renew the lease with the tribe, the United States, as trustee for the Lummi Nation, sued the homeowners in federal District Court, alleging common law trespass and violation of the federal Rivers and Harbors Act (RHA) and Clean Water Act (CWA). The District Court ruled for the US on all three claims, ordered removal of the structures and imposed a fine for the CWA violations.2 The Court of Appeals, in an extensive opinion, found the homeowners liable for trespass and the RHA violation but sent the CWA claim back to the District Court for additional fact findings. In

Lawyers and ecological law 195 conclusion, the Court noted that, but for the intransigence of the homeowners, the litigation and its outcome could have been avoided by renewal of the original lease, which the Lummi and the US were willing to negotiate.3 There the matter ended, because seven months later the Supreme Court denied the homeowners’ petition for certiorari.4 The Ninth Circuit’s rejection of defendants’ trespass defense is consistent with the idea of ecological law. The core of that decision was the recognition and application as federal common law of the rules of accretion and erosion of shore-land property caused by action of the sea. In adhering to the traditional common law doctrine of reciprocity of gain and loss from accretion and erosion between the upland and tideland owners, the court rejected the idea that the upland was privileged as more valuable than the tidelands, noting the long-standing subsistence use of the tidelands for fishing and shellfish digging by the Lummi.5 In effect, ecological integrity and historic use of the tidelands trumped the traditional property interests of the upland owners. In a recent article, Stéphanie Roy notes that growing literature concerning the move to ecological law suggests a model in which the government is trustee for the environment. This model could lead “from an anthropocentric to a more holistic legal and governance system,” one that “internalizes a mutually enhancing human-Earth relationship” (Roy 2019, 506).6 Roy finds signs of such a development in Canadian cases imposing the duty of loyalty and other duties like those of common law trustees upon administrative bodies and officers acting in the public interest (Roy 2019, 506–515).7 Though on its face, U.S. v. Milner involved the application of common law trespass doctrine and statutory environmental regulation, a unique component of the case lends support to Roy’s thesis. As noted previously, the United States sued in its capacity as trustee of the Lummi Nation. Though that trustee relationship has a long and convoluted history involving all three branches of the federal government, at bottom it has the characteristics of a common law trusteeship—fiduciary duties to act for the beneficiary with care and loyalty, to protect and make productive the trust property and to enforce reasonable claims on the beneficiary’s behalf (Rey-Bear and Fletcher 2017, 397). The interest that the government sued to protect involved the historic and continuing use by the Lummi Nation of the tidelands “as a means of subsistence” through fishing and digging for shellfish.8 Given the traditional and renewable nature of this use, the trustee was plainly acting pursuant to its fiduciary duty to protect and make productive the trust property on behalf of the beneficiary. The arguments made by lawyers for the US and the Lummi Nation, and accepted by the Court of Appeals, are based on the duty of a trustee to preserve and enhance the ecological values of the tidelands at the expense of the economic value of the upland properties. The Court of Appeals in Milner noted that the decision would have little direct effect on most tidelands because they were held by the states subject to the public trust, rather than by a trustee with common law fiduciary duties. The Court, however, also noted that the states’ public trust doctrines protect interests of great public value in the tidelands that they govern.9 Roy (2019, 491–496), in arguing

196

L. Kinvin Wroth

for the equivalent of a common law trusteeship to protect and enhance environmental values, notes the wide variations among the public trust doctrines of US states in the tideland values protected, in the degree of protection accorded them and in the enforceability of the protections. She recognizes the successes of public trust protection in the US but suggests that these variations rank it with existing command-and-control environmental regulation as incapable of coping with the increasing natural and economic forces leading to rapid environmental degradation (Roy 2019, 495 note 99). Given the present tentative nature of the concept of a general governmental trusteeship for the environment, however, lawyers in states where the public trust doctrine is vigorous should not hesitate to assert its protections for the environment. Lawyers representing clients in litigation are constrained in their advocacy by their professional obligation to represent the client’s interest under the American Bar Association Model Rules of Professional Conduct, which serve as a model for the professional conduct rules of most of the 50 states (ABA 2019b, Rule 1.2). Those Rules, however, provide that the obligation does not preclude the presentation of “a good faith argument for an extension, modification or reversal of existing law” (ABA 2019b, Rules 3.1, 3.3). Similarly, judges, though generally expected to apply the law, are not precluded, when the applicability of the law to the facts is in doubt or its substance uncertain, from accepting and applying such good faith arguments (ABA 2019a, Rules 2.2 and 2.5).10 In Milner, an argument based solely on the premise that ecological law is a limit on the parties’ interests would have exceeded those leeways. The case demonstrates, however, that lawyers and judges can move toward that vision by making full use of the “give” in existing judicial statements of the common law or interpretations of statutes.

Legislation and planning Lawyers may use their professional skills as members of legislative or planning bodies. As previously noted, the ABA Model Rules of Professional Conduct impose limits on the scope of a lawyer’s advocacy for a client. Those Rules, however, have little to say specifically about limitations on lawyers as legislators or planners. Lawyer-legislators do not have a lawyer-client relationship with their constituents, nor do lawyers employed as planners. Model Rule 8.4, however, provides that conduct of any kind by a lawyer that involves dishonesty, fraud, deceit or misrepresentation; that is prejudicial to the administration of justice; or that states or implies an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law is professional misconduct (ABA 2019b, Rule 8.4). Comment [7] to Rule 8.4 advises, somewhat cryptically, that “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.” These provisions may require, or counsel, caution and disclosure when lawyer’s legislative or planning activities may have an effect on the lawyer’s personal interests or those of a client, but they do not invoke the strict limits imposed by the lawyer-client relationship.11

Lawyers and ecological law 197 The Coastal Zone Management Act The US Coastal Zone Management Act (CZMA), enacted in 1972 and subsequently amended,12 provides an appropriate setting to consider opportunities for lawyers as citizen members of legislative bodies to use their professional skills to move society toward an ecological future. Unlike the US federal commandand-control environmental regulatory acts adopted in the 1970s, the CZMA is an exercise in voluntary cooperative federalism. The Act is administered under the Secretary of Commerce by the National Oceanic and Atmospheric Agency (NOAA).13 It provides funds to assist, but not require, coastal states and territories to develop and present for approval by the Secretary a management program for land and water uses in a state-defined coastal zone.14 Currently, 34 of the 35 coastal states and five US overseas territories have federally approved coastal zone management programs.15 The CZMA provides that a state or territory may set the inland boundaries of its coastal zone “to the extent necessary to control” non-federal shore lands that may affect coastal waters or be vulnerable to sealevel rise.16 The seaward boundary of a coastal zone extends to the outer limits of the state or territory’s territorial sea or, in the Great Lakes, to the international boundary with Canada.17 The CZMA, now codified after numerous amendments, as Title 16, United States Code, chapter 33, consists of 26 sections. Sections 1451–1453 set forth Congressional Findings, a Policy Declaration and definitions. Sections 1454, 1455 and 1456 describe the process for creation and approval of basic state coastal zone management plans and establish important requirements for coordination and cooperation between federal agencies and state plans. The remainder of the Act consists of provisions for special funding programs for state coastal zone activities and of administrative provisions. There are two major incentives for state participation under the CZMA: (1) a state with a management program approved under sections 1454 and 1455 is eligible for grants for administering the program and for conducting specific coastal resource and enhancement and other programs.18 (2) Section 1456(c) provides that federal activities and federally permitted activities, including offshore energy production, within, or affecting, a state’s coastal zone, must be consistent “to the maximum extent practicable” with the state’s management program unless exempted on a finding by the President that the federal activity “is in the paramount interest of the United States.” In other cases, if a state does not concur in the grant of a federal permit, the permit is denied unless the Secretary finds on appeal that the permitted activity “is consistent with the objectives [of the CZMA] or is otherwise necessary in the interest of national security.”19 The original purpose of the CZMA was ostensibly to protect marine ecosystems. Its Findings and Policy Declaration as first enacted emphasized protection of the ecology and natural resources of the coastal zone from the increasing impact of unrestricted population growth and development, but the solution under the CZMA was better management of that growth and development through planning and regulation.20 Most amendments of the Act, moreover, have further supported

198

L. Kinvin Wroth

that management.21 The requirements of the Act for approval of state management programs, as amended several times, presently include, in addition to the original ecologically supportive components, the management of coastal development to minimize loss of life and property, giving priority to “national defense, energy, fisheries development, recreation, ports and transportation” and the location “of new commercial and industrial developments” near existing developments, and providing “assistance in the redevelopment of deteriorating urban waterfronts and ports.”22 A recent article by Carla Sbert proposes a “lens of ecological law”—a threepart matrix for measuring the degree to which an existing legal arrangement falls short of the standards of ecological law (Sbert 2019). Sbert’s “lens” provides a useful way to assess the ecological impact of the CZMA. 1

Ecocentrism. Does the legal arrangement recognize and value equally human and nonhuman members of the Earth community (Sbert 2019, 518)?

The CZMA primarily addresses human needs. The first Congressional Finding in the Act is that “There is a national interest in the effective management, beneficial use, protection, and development of the coastal zone.”23 The subsequent provisions of the Findings, Policy Declaration and approval criteria make clear that, even in those sections that address ecological and natural resources, their “management, beneficial use, protection, and development” is only for the benefit of the human inhabitants and owners of the coastal zone.24 2

Ecological Primacy. Do social and economic behavior and systems founded on the legal arrangement constrain material and energy use within ecological limits and restore and maintain ecological integrity (Sbert 2019, 519)?

The most that can be said of the CZMA on this point is that its provisions concerning the elements of a participating state’s coastal zone management program leave much to the discretion of the state’s planning agency. Because state programs are ultimately subject to approval by the Secretary of Commerce, the ambivalent focus of the Act, with its underlying theme of protection of ecological and natural resources for the economic, social and aesthetic benefit of the human owners and users of the coastal zone, makes state discretion a matter of the ability to strike a balance in favor of ecological and natural resources needs, as against economic concerns. 3

Ecological Justice. Does the legal arrangement ensure equitable access to the Earth’s sustaining capacity for present and future human and nonhuman members of the Earth community and equitably distribute environmental harms among present and future generations (Sbert 2019, 520)?

As with ecological primacy, assessment of the ecological justice dimension of the CZMA depends in significant measure on the program and process in each individual state. The CZMA Policy Declaration begins with the statement that it

Lawyers and ecological law 199 is national policy “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations.”25 It is difficult, however, to trace this nod to intergenerational equity in subsequent provisions of the Act. Most provisions deal with existing problems and failed solutions. Sbert recognizes community participation, and thus influence, on decisions affecting the use of ecological and natural resources and distribution of resulting benefits and harms as a component of ecological justice (Sbert 2019, 541). The Act calls for local government participation, public hearings and comments, and other forms of community involvement in the development of a state’s program.26 The effectiveness of these efforts in serving the purpose described by Sbert depends on the scope and spirit in which they are implemented by the state. Recent efforts to amend the CZMA suggest steps toward an ecological future. S.2472, which died in committee in the 115th Congress,27 would have amended the congressional findings in 16 U.S.C § 1451(a) by adding to the elements of the national interest in the coastal zone, “resilience of the coastal zone and coastal natural resources.” In the definitions section, 16 U.S.C. §1453, S.2472 would have added to the definition of “coastal resource of national significance” the language, “if any such area is determined by a coastal state, alone or in combination with other such areas, to be of substantial biological, research, geological, hydrological, natural, ecological, storm protective, water quality, or flood risk protective value.” Other provisions of the bill would have emphasized the role and importance of renewable energy.28 More limited amendments have been proposed in the 116th Congress.29 H.R. 3541 would amend the CZMA to require establishment of “a coastal climate adaptation preparedness and response team” and would support coastal states in creating plans and preparing for the negative effects of climate change.30 H.R. 729 would authorize grants to Native American tribes to further the achievement of important tribal ecological or cultural objectives by planning for important coastal areas and implementing measures for public safety, public access, or cultural or historical preservation or to address threats due to climate change.31 These bills, if enacted, would make only incremental change in a long-standing, complex statutory scheme that is well-entrenched at the state level. A more radical two-step process would be necessary to meet fully the standards of ecological law. First, significant changes would have to be made in the structure and operating provisions of the CZMA to establish Sbert’s principal of ecological primacy in its implementation. For example, in the Findings, section 16 U.S.C.A. §1451(a) could be amended to read as indicated here by strike-throughs and italics: “There is a primary national interest in preserving and advancing the ecological integrity of the coastal zone through effective management, beneficial use, and protection and development of the coastal zone of its ecological resources.”32 Most important would be the addition of a new requirement such as the following to the findings that the Secretary must make under 16 U.S.C.A, §1455(d) before approving a state’s management program:33 [that] (2) The §1455 management program requires and implements as its primary goal that the state maintain, restore, and increase the integrity of the

200

L. Kinvin Wroth ecological resources of its coastal zone as a precondition to satisfying the other requirements of this section.

Conforming changes in the policies, definitions and in other CZMA programs would have to be made.34 The second step in the process is a function of the cooperative federalism embodied in the CZMA. Section 1455(e) of the Act presently provides a procedure under which a state may voluntarily seek approval of the Secretary to amend or modify an approved management program. Currently, 23 of the 34 states with approved management programs have received final approval, but the remaining state programs are still only conditionally approved.35 Given that history, the existing process would present major delays in implementation. An effort to address the problem by mandating that each state or territory amend its management program to require ecological primacy by a certain date or have its CZMA benefits suspended would certainly involve at least comparable delays and perhaps state defections from the program. In short, the major changes necessary to bring the principle of ecological primacy to the fore in the CZMA would become feasible only as part of a much broader acceptance of the necessity of a general régime of ecological law. Planning The work of the United Nations Intergovernmental Conference to develop an international agreement concerning exploitation of biodiverse resources in ocean areas beyond national jurisdiction (ABNJ) provides an opportunity to examine the potential role of lawyers employed as planners. The Conference was established as the result of UN efforts to address concerns that the United Nations Convention on the Law of the Sea (UNCLOS), effective in 1994, had provided only for protection and regulation of ABNJ seabed resources (United Nations 2019a, Introduction para. 1; Gjerde et al. 2019, 3).36 Areas beyond national jurisdiction cover nearly half of the Earth’s surface and host a significant portion of its biodiversity, but their remoteness and resulting lack of knowledge of them have long placed them beyond the reach of human activities. However, scientific and technological advances, coupled with a growing population and demand for resources, have increased interest in their exploration and exploitation (Freestone 2009, 44). The Conference was to consider four principal topics: [1] the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, [2] marine genetic resources, including questions on the sharing of benefits, [3] measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building, and [4] the transfer of marine technology. (United Nations 2019a, par. 2)

Lawyers and ecological law 201 After preliminary meetings beginning in September 2018, the Conference, in May 2019, distributed a Draft Agreement (United Nations 2019a, par. 4–6). Relatively minor revisions to that Draft distributed in November 2019 (United Nations 2019b) were to be considered at a final session from March 24–April 3, 2020.37 The Preamble of the Draft recites the need to “better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” and the desire “to promote sustainable development” (United Nations 2019a, Art. 2; United Nations 2019b, Art. 2). “Conservation,” “sustainable use,” “sustainable” and “sustainability” are not defined. The context, however, indicates that these terms are used to mean development that does not impair the ability of future generations to meet their needs. Geoffrey Garver has characterized this sense of the words as reflecting “the current insistence on economic growth,” in contrast to the premise of ecological law “that global ecological limits constrain the economic and social spheres that are usually associated, along with environmental concerns, with ‘sustainability’” (Garver 2013, 319). The addition to the Preamble in the November 2019 Draft of the words, “Desiring to act as stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations,” (United Nations 2019b, Preamble) seems to emphasize this point. The guiding principles in Article 5 of both Drafts call for “an ecosystem approach . . . that builds ecosystem resilience to the adverse effects of climate change and ocean acidification and restores ecosystem integrity” (United Nations 2019a, Art. 5(b); United Nations 2019b, Art. 5(h)). Garver, in the passage quoted earlier, states that if “sustainability” is to be understood in the broad sense, it should “recognize the essential primacy of ecological integrity. The term ‘ecological law’ emphasizes this primacy” (Garver 2013, 316). Though in a number of places the Drafts call for protection of vulnerable ecosystems or the use of an “ecosystem approach,” the term is not defined and appears in the context of other approaches to the generic purposes of conservation and sustainability (United Nations 2019a, Art. 16.1, 10(g); United Nations 2019b, Art. 10(g), 5(f)). Ecosystem, or ecological, integrity clearly does not have primacy in the Draft Agreements. An examination of the Draft Agreements in the light of Carla Sbert’s three-part “lens of ecological law” discussed earlier, bears out Garver’s conclusion (Sbert 2019, 517–547). 1

Ecocentrism. The Draft Agreement is primarily human-oriented. The continued references to sustainability throughout the document and the lack of primacy for ecological integrity make this point clear. Some of the changes in the November 2019 draft, such as the addition of Article 10bis recognizing the need for consent of Indigenous peoples and local communities for access to traditionally held knowledge of marine genetic resources, and of Article 44.1 calling for facilitation of transfer of capacity-building and marine technology to disadvantaged or developing states (United Nations 2019b, Art. 10bis, 44.1), are set in the economically driven context of the Draft Agreement as a whole.

202 2

3

L. Kinvin Wroth Ecological Primacy. The call in Article 5 for “an ecosystem approach” is subject to the generic purposes of conservation and sustainability. Ecosystem, or ecological, integrity clearly does not have primacy. The Draft Agreement does not, in Sbert’s words, “constrain material and energy use within ecological limits and restor[e] and maintain ecological integrity,” (Sbert 2019, 519) much less give it primacy. Ecological Justice. The guiding principles as set forth in Article 5 of the November 2019 revised Draft include provisions that could meet the standards of ecological justice: for example, protection of vulnerable ecosystems, use of an ecosystem approach, the polluter-pays principle, the principle of the common heritage of mankind, the principle of equity, the precautionary principle/approach, an integrated approach, the use of the best available science or scientific information, the use of relevant traditional knowledge of Indigenous peoples and local communities, the non-transfer of damage or hazards from one area to another and the non-transformation of one type of pollution into another (United Nations 2019a, Art. 5(a)-(g); United Nations 2019b, Art. 5(a)(j)). A number of specific provisions of the November 2019 Draft Agreement would implement these general principles (United Nations 2019b, Articles 9 (4), 10bis, 11. 14(d)-(e), 16(1), 24(1)(b)—Alt.2). Taken by themselves, these principles and provisions suggest a regime of ecological justice. However, when these features of the Draft Agreement are examined in context with Sbert’s Ecocentrism and Ecological Primacy lenses, the Agreement falls short of the standards of ecological law (Sbert 2019, 518–520). Ecological values are clearly subordinated to “sustainability” in its general sense of development that does not impair the ability of future generations to meet their needs, a reflection of “the current insistence on economic growth” (Garver 2013, 319).

To bring the Draft Agreement in line with the concept of ecological law, a number of further revisions should be considered. Most basic would be additions to Article 1 of definitions that would make clear that ecological primacy was the dominant principle of the Agreement. These new definitions might include the terms conservation, ecology, ecological law, ecological primacy, ecosystem, ecosystem approach, sustainability and sustainable development. The definitions, drawn from the work of Garver, Bosselmann and others, discussed in the next section, would be designed to make clear that the Draft Agreement marked a shift to ecological law as its governing principle. Further revisions would then be made to the operating provisions of the Agreement to reflect that shift.

Scholarship and teaching Lawyers as members of law school faculties, or in other academic roles, have been, and will be, leaders in defining and developing the new regime of ecological law. Through their scholarship, they can define the legal steps to, and the legal elements of, the new vision. Through their teaching, they can guide a new generation of lawyers to carry out that vision.

Lawyers and ecological law 203 As lawyers, US law school faculty members may be subject to some of the general provisions of the Model Rules of Professional Conduct referred to earlier, but in their academic roles their conduct is more specifically governed by provisions of the American Bar Association’s “Standards for Approval of Law Schools” applicable to faculty responsibilities (ABA 2019c, Standards 401, 404, 405(b); Appendix 1). Those Standards provide that the dean and faculty of approved law schools have primary responsibility for curriculum planning and policy, subject to minimum content requirements, and are to engage in ongoing evaluation for purposes of curriculum improvement. The Standards also require that a law school have a policy of academic freedom for individual faculty in their teaching and scholarship responsibilities (ABA 2019c, Standards 201(a), (c); 302 and Interp. 302–302; 315; 404(a); 405(b); Appendix 1). Within the leeways provided by these provisions, a faculty member would be free to write at length on ecological law and to include treatment of ecological law and ecological primacy in an appropriate course. A faculty acting as a whole could establish understanding of ecological law and ecological primacy as a “learning outcome” that its curriculum should provide (ABA 2019c, Standard 302). A revision of the ABA Standards to require such a step, however, would become feasible only as part of a much broader acceptance in the society and the legal profession of the necessity of a general regime of ecological law. Scholarship Geoffrey Garver’s recent work lays the foundation for “ecological law” as a term describing the new vision. He suggests that, under a regime of ecological law, the protection of ecological integrity would impose legal limits on human activity, in contrast to the present regime of environmental law, which is defined and limited in application by the needs of human activity (Garver 2013, 317–320; Garver 2019, 428–436; Bosselmann and Taylor 2017, Introduction). Garver embraces within the concept of limits imposed by ecological law ideas expressed by other scholars under various labels, beginning with Thomas Berry’s “mutually enhancing humanEarth relationship” in which human as well as nonhuman rights were recognized and in which “[e]cology is not a part of law; law is an extension of ecology,” and including David Boyd (“sustainability law”), Klaus Bosselmann (“principle of sustainability”), Peter D. Burdon (“Earth jurisprudence”), and Cormac Cullinan (Wild Law) (Garver 2013, 318–319; Garver 2019, 428–430). The full arc of this development, from Aldo Leopold’s “The Land Ethic” (1949) to Garver’s The Rule of Ecological Law (2013) is documented in Ecological Approaches to Environmental Law, a collection of 36 articles assembled and edited by Klaus Bosselmann and Prue Taylor (2017). More recent activities and publications illustrate the rising acceptance of ecological law. Five papers from an October 2017 McGill workshop titled “From Environmental to Ecological Law,” at which a multinational group of 24 scholars presented, were published in The Vermont Law Review in spring 2019. Their subjects show that the shift from environmental to ecological law is a subject

204

L. Kinvin Wroth

of continuing and growing academic interest (Garver 2019, McLeod-Kilmurray 2019; Roy 2019; Sbert 2019; Hammond Wagner 2019). The present volume contains 16 chapters, many also presented at the McGill workshop, which further establish the acceptance of the concept of ecological law. The Vermont Law Review articles and the chapters in the present volume document specific environmental losses attributable to the failings of the present system and describe the scope and shape of the new regime of ecological law. Such works can assist lawyers in developing an early awareness of the issues and a process for the transition to the new regime of ecological law—not only in environmental law, but in fields such as tort, contract, property, criminal and corporate law, along with the law that defines constitutional and institutional structure. Teaching There is a multitude of ways in which lawyers in the law school classroom can awaken law students to the increasing importance that ecological law will have in the professional world that they are preparing to enter. For example, in her proposal for a chapter in the present volume, Nicole Graham noted that: Legal educators have the opportunity to develop the capacity of future lawmakers to adapt legal knowledge and practice to the challenges of the Anthropocene. This chapter considers four pathways through which this innovative work has already started: multidisciplinary approaches; place-based learning; Indigenous legal education; and helping students connect and review the interaction of law’s categories within its jurisdiction understood not abstractly, but geographically as the source of law’s authority. (Graham 2019) One such “pathway” would be to address the impact of ecological law within the framework of courses that deal with current law. For example, littoral rights, coastal zone management and areas beyond national jurisdiction, considered earlier, which might be covered in a current course on regulation of the marine environment, could be part of a new course in ecological law and the marine environment that might be roughly organized in the following way: I From Environmental to Ecological Law: the basics. Discussion and analysis of readings in Bosselmann and Taylor (2017), and more recent work, including Nicole Graham’s chapter and other essays in the present volume. II The Public Trust and Private Property Interests. Basic background of these areas. Discussion and analysis of move to ecological law as considered in the earlier discussion of United States v. Milner and Stephanie Roy’s comments.38 III Governance of the Coastal Zone. Basic principles and provisions of the Coastal Zone Management Act and other coastal regulation. Discussion and analysis of effect of changes in the Act to move toward a regime of ecological law.39

Lawyers and ecological law 205 IV Who Owns the Sea? The background, principles, and application of UNCLOS. Development of international agreement on areas beyond national jurisdiction, and discussion and analysis emphasizing the effect of ecological law in those provisions.40 V Exploitation and Conservation of the Resources of the Sea. Discussion of legislation such as the US federal Outer Continental Shelf Lands Act, Magnuson-Stevens Act, Marine Mammals Protection Act, and Endangered Species Act and the effect of ecological law in their application to issues such as climate change and sea-level rise (Rieser and Christie 2020, 391–919).

Conclusion Geoffrey Garver, in the most recent of his many assessments of the state of ecological law, makes clear that the transition from the anthropocentric growthinsistent model embraced by environmental law within the present legal system to the ecocentric limits-insistent system that ecological law represents is, like the acceptance of ecological economics that it supports, a distant prospect. Both are “still mostly conceptual and not yet widely understood or practiced,” because both involve a move away from an underlying global “insistence on economic growth” (Garver 2019, 450). “Significant obstacles” to that transition include a long process of overcoming high “resistance to change in the legal system and related systems” and allowing “a significant change in deeply entrenched power structures at all scales” (Garver 2019, 453). Pending those significant changes, lawyers litigating or advising clients, or adjudicating disputes as judges, can analyze and critique current law and argue for its application, interpretation and revision in light of evolving ecological values. Lawyers as citizens can bring their professional training and knowledge to bear as members of legislative or planning bodies and can articulate the new ideas and design and enact the new statutory frameworks that lead to the ecological future. As scholars and teachers, lawyers can define the legal steps to, and the legal elements of, the new vision in their scholarship and guide a new generation of lawyers and others to carry them out. In the timeless words of social satirist Mort Sahl (1958), “The future lies ahead.”

Notes * This chapter is based on and expands the author’s Introduction to From Environmental to Ecological Law: the Future Lies Ahead, Papers Presented at a Workshop, McGill University Faculty of Law, October 17–18, 2017, Vt. L. Rev. 43 (2019), 415–424. 1 U.S. v. Milner, 583 F.3d 1174 (9th Cir. 2009), cert. den., sub nom. Sharp v. United States, 560 U.S. 918 (5/10/10). 2 U.S. v. Milner, 2003 WL 27383977 (W.D. Wash., 5/30/03) (summary judgment for U.S. as trustee on CWA claim); 2003 WL 27383978 (W.D. Wash., 6/18/03) (summary judgment for U.S. as trustee on trespass and RHA claims). 3 Milner, note 1 above, at 1197. The District Court’s decision that title to the tidelands was in the US as trustee, not the state of Washington, 2002 WL 35646188 (W.D. Wash., 12/16/02), and its denial of fees under the Equal Access to Justice Act (EAJA), 28

206

4 5 6 7

8 9 10 11

12 13 14 15

16 17 18 19 20 21 22 23 24 25 26 27

L. Kinvin Wroth

U.S.C. sec. 2412, 2005 WL 3072830 (W.D. Wash., 11/15/05), were also upheld by the Ninth Circuit. Milner, note 1 above, at 1183–1186, 1196–1197. See Sharp, note 1 above. Milner, note 1 above, at 1188, citing Bd. Of Trustees of the Internal Improvement Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209, 213 (Fla. Dist. Ct. App. 1973). Roy, at pp. 486–491, 494–501 makes reference to and discusses the concept of trusteeship in Wood (2014) and Bosselmann (2015). Roy cites and discusses Canada Ltée (Spraytech, Sociéte d’arrosage) v. Hudson (Town), 2001 SCC 40 (Can.); Imperial Oil Ltd. v. Québec (Minister of the Env’t., 2003 SCC 58 (Can.); Wallot c. Québec (Ville de), 2011 QCCA 1165 (Can.); Castle Crown Wilderness Coal. v. Alberta (Dir. of Regulatory Assurance Div.), 2005 ACCA 283 (Can.). Milner, note 1 above, at 1186, 1188. Compare Milner, note 1 above, at 1190, n. 11, with id. at 1188. For a summary of the role of precedent and the bases for departing from it, see Walker (2016). See ABA, Model Rules, Rule 6.4 (lawyer member of law reform organization should disclose potential benefit to client from decision in which lawyer participates). See District of Columbia Bar Ethics Opinion 231 (D.C. Bar, 1992) (D.C. Council member may participate in consideration of legislation affecting client of law firm), www.dcbar.org/ bar-resources/legal-ethics/opinions/opinion231.cfm. For arguments that Model Rules should address this question more explicitly, see, for example, Tracz (2018, 451). Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451–65. See, generally, CRS (2019); Brooks (2012, 462–463); Wroth (2012, 494–497). See National Oceanic and Atmospheric Agency (NOAA), Office for Coastal Management, https://coast.noaa.gov/czm/act/. “Coastal state” includes all states of the United States bordering ocean or Great Lakes waters, as well as U.S. overseas territories. CZMA, 16 U.S.C. § 1453(4). Alaska, which declined to renew its coastal zone program in 2011, is the exception. See NOAA, Office for Coastal Management, https://coast.noaa.gov/czm/mystate/. The Trust Territory of the Pacific Islands, still listed as one of six overseas US possessions in the definition of “coastal state,” 16 U.S.C. § 1453(4), was a scattered island group administered by the United States under a UN mandate from 1947 until 1994, by which time it had devolved into three sovereign states in free association with the US and the Commonwealth of the Northern Mariana Islands, in political union with the US, and generally subject to US federal law, including the Coastal Zone Management Act. See NOAA, Office for Coastal Management; 16 U.S.C. § 1453(4). See, generally, https:// en.wikipedia.org/wiki/Trust_Territory_of_the_Pacific_Islands. CZMA, 16 U.S.C. § 1453(1). CZMA, 16 U.S.C. § 1453(1). CZMA, 16 U.S.C. §§ 1455(a)-(c), 1455a, 1456–1,1456b, 1456d, 1461. For the regulations implementing the CZMA, see Code of Federal Regulations 15: Part 923. CZMA, 16 U.S.C. §§ 1456, 1465. For the regulations implementing the consistency requirement, see Code of Federal Regulations 15: Part 930. See Coastal Zone Management Act of 1972, §§ 302(a), (g), (h); 303(b), 304(g); 305(a), P.L. 92–583, 86 Stat. 1280–1282. See CZMA, §16 U.S.C, §1451(f), (j)-(m) See CZMA, 16 U.S.C. §1452(2)(A)-(K). See also, required findings for approval of state plan by the Secretary, CZMA, 16 U.S.C. §1455(d)(2)(G), (H); (8). CZMA, 16 U.S.C. §1451(a). See, for example, CZMA, 16 U.S.C. §1451(b). CZMA, 16 USC § 1452(1) CZMA, 16 U.S.C. § 1455(d) (3), (4). Summary, S.2472, 115th Cong., 2d Sess., www.congress.gov/bill/115th-congress/ senate-bill/2472. For prior amendment attempts, see CRS, Coastal Zone Management Act, at 12.

Lawyers and ecological law 207 28 Summary, S.2472. See, for example, S. 2472, §§ 101(3), (4); 102(3), (5), (6), (8), (11, (17); 104(7); 106. 29 In addition to the two bills discussed in the following text, see H.R. 3596.116th Cong., 1st Sess. (amending CZMA to establish Working Waterfront Task Force and working waterfront grant program); Bertrand (2019). 30 H.R. 3541, 116th Cong., 1st Sess. See Bertrand (2019). 31 H.R. 729, 116th Cong., 1st Sess. Summary, §§2(a), 2(c), www.congress.gov/bill/116thcongress/house-bill/729. See Agoyo (2019). 32 16 U.S.C.A. § 1451(a). 33 16 U.S.C.A, § 1455 (d). 34 See CZMA, 16 U.S.C.A. §§ 1452 (Declaration of Policy), 1453 (Definitions), 1455(d) (State Program Approval Requirements), 1455a (Coastal resource improvement program), 1455b (Protecting coastal waters). 35 CRS, Coastal Zone Management Act, at 16. 36 I am grateful to my colleague, Professor Sarah M. Reiter, for calling these materials to my attention. 37 Information for participants, www.un.org/bbnj/sites/www.un.org.bbnj/files/information_ for_participants_fourth_session_ 1.pdf. 38 See the section in this chapter on Litigation. 39 See the section in this chapter on Legislation. 40 See the section in this chapter on Planning.

References ABA. 2019a. “Model Code of Judicial Conduct.” American Bar Association. ABA. 2019b. “Model Rules of Professional Conduct.” American Bar Association. ABA. 2019c. “2019–2020 Standards for Approval of Law Schools.” American Bar Association. Agoyo, A. 2019. “Tribal Coastal Resiliency Act Inches Forward on Capitol Hill.” Z News. www.indianz.com/News/2019/09/25/tribal-coastal-resiliency-act-inches-for.asp. Bertrand, S. 2019. “Two Bills Propose to Amend the Coastal Zone Management Act to Improve Coastal Resilience.” Environment and Energy Study Institute. www.eesi. org/articles/view/two-bills-propose-to-amend-the-coastal-zone-management-act-toimprove-coastal-resilience. Bosselmann, K. 2015. Earth Governance: Trusteeship of the Global Commons. Cheltenham, UK: Edward Elgar. Bosselmann, K. and P. Taylor, eds. 2017. Introduction to Ecological Approaches to Environmental Law. Cheltenham, UK: Edward Elgar. Brooks, R.O. 2012. “Making the ‘Mediterranean of the Western Hemisphere’ a Sustainable Community: The Connecticut Coastal Management Act and the Long Island Sound.” Vermont Journal of Environmental Law 13: 453–487. CRS. 2019. “Coastal Zone Management Act (CZMA): Issues for Congress (1/15/19).” Congressional Research Service. Freestone, D. 2009. “Modern Principles of High Seas Governance: The Legal Underpinnings.” Environmental Policy and Law 39, no. 1: 44–49. Garver, G. 2013. “The Rule of Ecological Law: The Legal Complement to Degrowth Economics.” Sustainability 5: 316–337. Garver, G. 2019. “Confronting Remote Ownership Problems with Ecological Law.” Vermont Law Review 43: 425–454. Gjerde, K.M., N.M. Clark and H.R. Harden-Davies. 2019. “Building a Platform for the Future: The Relationship of the Expected New Agreement for Marine Biodiversity in

208

L. Kinvin Wroth

Areas beyond National Jurisdiction and the UN Convention on the Law of the Sea.” Ocean Year Book 33: 3–44. Graham, N. 2019. “Legal Education for the Anthropocene.” chapter proposal in Book proposal—From Environmental to Ecological Law, edited by K. Anker, P.D. Burdon, G. Garver, C. Sbert and M. Maloney. Routledge Press (June 17). Hammond Wagner, C.R. 2019. “U.S. Fresh Water Law & Governance in the Anthropocene: A Critique of the Riparian Rights Legal Framework as a Basis for Water Governance in Vermont.” Vermont Law Review 43: 549–574. McLeod-Kilmurray, H. 2019. “Does the Rule of Ecological Law Demand Veganism?: Ecological Law, Interspecies Justice, and the Global Food System.” Vermont Law Review 43: 455–483. Rey-Bear, D.L.S.J. and M.L.M. Fletcher. 2017. “We Need Protection from Our Protectors: The Nature, Issues and Future of the Federal Trust Responsibility to Indians.” Michigan Journal of Environmental & Administrative Law 6: 397–461. Rieser, A. and D.R. Christie, eds. 2020. Ocean and Coastal Law: Cases and Materials, 5th ed. St. Paul, MN: West Academic. Roy, S. 2019. “Fiduciary Duties under the Trusteeship Theory: The Contribution of Canadian Case Law in Judicial Review of Environmental Matters.” Vermont Law Review 43: 485–516. Sahl, M. 1958. “The Future Lies Ahead.” UMG Recordings 2017. www.pandora.com/ artist/description/mort-sahl/the-future-lies-ahead/ALt9mnxmwc6h2ZV. Sbert, C. 2019. “El Salvador’s Mining Ban and Mining in Ontario’s Ring of Fire from the Lens of Ecological Law.” Vermont Law Review 43: 517–547. Tracz, E.T. 2018. “Lies, Liars, and Lawyers as Legislators: An Argument towards Holding Attorneys Accountable for Violating the Model Rule of Professional Conduct 8.4(c) Whilst Acting in a Legislative Role.” Southern Illinois University Law Journal 42: 451–475. United Nations. 2019a. “Draft Text of an Agreement . . . on the Conservation and Sustainable Use of Marine Biological Diversity of areas beyond National Jurisdiction.” (May 17, 2019) (A/CONF.232/2019/6). United Nations. 2019b. “Revised Draft Text of an Agreement-on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction.” Advanced Unedited Version (English only), Note by the President, Introduction (November 27, 2019). Walker, Hon. J.M. Jr. 2016. “The Role of Precedents in the United States: How Do Precedents Lose Their Binding Effect.” Stanford Law School China Guiding Cases Project (final edition, February 29, 2016). https://cgc.law.stanford.edu/wp-content/uploads/ sites/2/2016/02/Commentary-15-English.pdf. Wood, M.C. 2014. Nature’s Trust: Environmental Law for a New Ecological Age. Cambridge, UK: Cambridge University Press. Wroth, L.K. 2012. “Six Flags Revisited: Coastal Zone Management or Marine Spatial Planning for Lake Champlain?” Vermont Journal of Environmental Law 13: 489–511.

14 Learning sacrifice Legal education in the Anthropocene Nicole Graham

Introduction In November 2019, over 11,000 scientists from 153 countries declared “clearly and unequivocally that planet Earth is facing a climate emergency” (Ripple et al. 2019, 1). According to current data, “we need bold and drastic transformations” (3) of the status quo to “avoid untold suffering due to the climate crisis” (1). What, if any, “bold and drastic” change might legal educators effect to this end? Legal education plays an important role in facilitating and regulating anthropogenic environmental change by reproducing the knowledge and skills used by generations of legal professionals and policymakers to both legitimate and prohibit certain economic and social relations and practices (Graham 2014). Law, as a social and economic institution, and as part of a broader cultural discourse of entitlement (Graham 2012), prescribes a relationship between the human and more-than-human worlds that Western scientific data and First Nations laws show to be unsustainable (Steffen et al. 2015; Watson 2018). By moving beyond a “business-as-usual” approach to our work as designers, teachers and assessors of legal knowledge, we could transform the way that law is learned—enabling law graduates to “assist decision-makers in a just transition to a sustainable and equitable future” (Ripple et al. 2019, 4). This chapter considers the transformation of legal education to help regulators mitigate and adapt human life to the conditions of the Anthropocene (Crutzen 2002; Crutzen and Stoermer 2000) as an urgent task (Graham 2014, 398) and an ethical and professional responsibility (MacLean 2020, 27). The overarching objective of legal education for the Anthropocene is to foreground and subvert the contribution of law and private rights to anthropogenic climate change. We must take up pedagogical opportunities to effect change before tipping points (van Nes et al. 2016) are reached beyond which such endeavors would be ineffectual.

The Anthropocene: metrics and narrative It is customary in nonscientific literature on the Anthropocene and/or climate change for scholars to set out the key points from the scientific literature before they move on to the arguments about various aspects of the topic in their own

210

Nicole Graham

publications. As a citizen of Australia, whose Prime Minister shook a rock of coal in the nation’s House of Representatives, saying, “this is coal, don’t be afraid, don’t be scared, won’t hurt you,” I feel obliged to observe this customary introduction to key scientific metrics before I move on to my argument. But this data should be sufficiently and widely understood to not need repeating. It is 2020: the Western scientific data has been available since the 1980s (Hamilton and Grinevald 2015), accompanied by a crescendo of warnings from the scientific community that remain unheeded (Ripple et al. 2017). The first part of this section will recall the metrics. The second part will set out an important critical analysis of the concept and narrative of the Anthropocene from the humanities and social science literatures. These analyses are crucial to our collective capacity, as researchers and teachers, to contribute solutions that get to the nub of the problem and thus offer important insights to legal and policy research and decision-makers. Metrics The year 2019 was the second hottest on record, with a global mean temperature over 1.1°C above pre-industrial levels. The years 2015–2019 are the five warmest years on record (World Meteorological Organization 2019). The major driver of higher global temperatures is greenhouse gas concentrations in the atmosphere. In 2018, the annual increases of the main greenhouse gases (carbon dioxide, methane and nitrous oxide) were all larger than in the previous year and many times greater than pre-industrial levels (5). At current levels of emissions, “the world is on course to exceed the agreed temperature thresholds of 2°C above pre-industrial levels” (214). Worse still is the very real risk that such an increase could be locked-in without immediate decarbonization because “it takes centuries to millennia for CO2 already present in the atmosphere to be removed by natural processes” (Office for Climate Education 2018, 9). Further, carbon lock-in may also reduce the impact of “technological, economic, political, and social efforts to reduce carbon emissions” (Seto et al. 2016, 427). There are innumerable consequences of climate change, and here I will list the key costs. The deoxygenation and acidification of oceans are threatening the health and existence of marine ecosystems and coral reefs. Sea levels are rising. Sea ice maximums are declining. Tropical cyclone activity is above average. Droughts and bushfires are breaking records, adversely affecting air quality, food security, water quality and biodiversity. With all these effects, we also see human population displacement (World Meteorological Organization 2019). Deforestation and broader habitat loss have led to substantially declining biodiversity. An average of around 25% of species in assessed animal and plant groups are threatened . . . the global rate of species extinction is already at least tens to hundreds times higher than it has averaged over the past 10 million years. (Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services 2019, 11)

Learning sacrifice 211 Taken together, these facts are indicative of what scientists have called the Anthropocene, which they understand to be “the beginning of a very rapid human-driven trajectory of the Earth System away from the glacial-interglacial limit cycle toward new, hotter climatic conditions and a profoundly different biosphere” (Steffen et al. 2018, 8253). Scientists created and defined the concept of the Anthropocene to “describe human impacts on the Earth’s surface of such magnitude, scope and scale as to present an existential threat” (Castree 2014a, 437). Within the scientific literature, there is debate over whether the Holocene can or should be said to be over, given the standards and metrics used to classify and categorize deep geological time. Other scientific literature engages the “collateral concept” of planetary boundaries (441) in its dissemination of models of “feedback processes” and “tipping points” that accompany and compound the severity and duration of the aforementioned observations through their cumulative effects on Earth system “thresholds” (Steffen et al. 2018, 8253). Other scientists research “natural climate solutions” involving changes to land and water use practices to “enhance biodiversity habitat, water filtration, flood control, air filtration and soil quality” (Griscom et al. 2017, 11647). This literature concerns itself with practical strategies to mitigate climate change, ever mindful that emissions reductions must start immediately since “the burden of delay is amplified by the ‘lock-in’ of existing sources and technologies” (Anderson et al. 2019, 934). Narrative The narratives that accompany the scientific advent of the Anthropocene are very significant, analytically, to the development of viable solutions. One aspect of the narrative is its striking departure from the characteristic conventions of Western scientific discourse: detached objectivity and disconnection from the life it has poisoned, tortured, dissected, preserved, destroyed and atomized (Merchant 1980) into finite taxonomies of knowable things and phenomena (Foucault 1972), concealing its “deep connection to carboniferous capitalism” (Gilbert 2016, 193). Long stymied by the constraints of their own discursive detachment and frustrated by political inertia, scientists are now sounding alarm bells and publishing “warnings” for public information (Ripple et al. 2019). Scientists are changing their audience, their position in the world and therefore also their discourse: translating complex, technical data (gathered over several decades by tens of thousands of scientists across a wide range of fields) into accessible information with a clear and unequivocal narrative of crisis. In 2020, “nature” is no longer an object for study in a jar. The jar, the lab assistant, the toxic and plastic lab wastes, the wastewater from the mine extracting the fossilized trees powering the light bulbs and refrigerated specimens, and the single-use plastic lid of the nonrecyclable cup containing the deforested-landscape-monoculture-produced coffee that is caffeinating the lab assistant are all from and in the world. Western science now tells us that there is no detachable object in a jar that is not always and already part of Earth’s systems. Ecological footprints can now be calculated (however imperfectly) in terms of their earthly inputs and outputs (McManus and Haughton 2006). Climate change

212

Nicole Graham

has changed the discourse of science. Narratives within the scientific literature on the Anthropocene, climate change and planetary boundaries are replete with existential crisis, catastrophe and emergency. The discursive shift from objective detachment to dire warnings corresponds with the unprecedented scale and impact of harms that the data records and predicts. Another important aspect of the scientific narrative of the Anthropocene is its myopic homogenization of multiple diverse human societies into a singular and strikingly “Northern” Anthropos (Brondizio et al. 2016; Malm and Hornborg 2014; Grear 2015; Chakrabarty 2016; Crist 2013). Social scientists and humanities scholars have critiqued the blunt attribution of climate change agency to “the human species as an undifferentiated whole” as a failing to observe the agency of “the operation of a specific economic system promoted by a global minority” (Hornborg 2019, 8; Haraway 2015; Latour 2014). In so doing, social scientists argue that the Anthropocene narrative “overlooks global inequalities” that are “paramount to understanding the underlying causes and consequences of climate change” (Brondizio et al. 2016, 322). Critical analyses of the scientific narrative of the Anthropocene and climate change have proven useful to developing greater accuracy in our understanding of its causes, and thus potential solutions. Viewing the Anthropocene as the result of a highly particular and relatively recent economic model and attendant legal regime, rather than as an inherently human condition, facilitates measures targeted for maximum mitigatory effect (Brondizio et al. 2016, 322; Hornborg 2019, 16; Moore 2017). The critical analysis and synthesis of trade, GDP and emissions data point to the correspondence of “Northern” affluence through “appropriation (of labour and land)” and its corollary “displacement (of work and environmental loads)” with climate change (Hornborg 2019, 15, 18). Hornborg concludes that “even those of us who are most intent on saving the planet count among its heaviest burdens” (21). This is increasingly recognized by climate scientists; “the most affluent countries are mainly responsible for the historical GHG emissions and generally have the greatest per capita emissions” (Ripple et al. 2019, 1). Critical analyses of climate change data and the anthropocentric narrative reveal that there are no solutions available to us by reproducing the economic models and legal doctrines “born in colonial Britain” (Hornborg 2019, 16). We need to think and learn about the world differently. In particular, there is an urgency for the world’s affluent population living in “nice places” (Plumwood 2008, 140) “to open their eyes wide and to see and know law beyond the colonialist foundation” that framed “the natural world as property that is divided up for sale, profit and exploitation” (Watson 2018, 138, 126). “Questions of episteme (understanding), techne (practice) and phronesis (values and power) arise simultaneously” (Castree 2014a, 444). Consequently, “climate change calls on academics to rise above their disciplinary prejudices, for it is a crisis of many dimensions” (Chakrabarty 2009, 215) requiring a “joined up analysis of the highest order, both within and between the environmental and social sciences” (Castree 2014a, 444). Social sciences and humanities research have already started to read and respond to scientific research data “as an input” (Brown and Erickson 2016, 43) and worked to connect it to

Learning sacrifice 213 relevant analyses of economies, laws, financial systems, political systems, social systems, histories and cultures. This work helps to identify and correct some of the socio-economic errors apparent in the scientific narrative attaching to the anthropocentric data, leading to more accurate and focused understandings of the precise locus of the problem so that effective solutions might become possible. What this means is that there is a role to play for every discipline in developing solutions. The questions for law as a discipline, and for its practitioners, teachers and students, are these: What is law’s role in the construction and reproduction of the problem? How could law work differently?

The role of law and legal education in the Anthropocene Legal research Legal scholars have researched the relationship of law to the Anthropocene regarding a range of legal inputs and effects (for example, Rayfuse 2010; Boyd 2010; Kotze 2014; Baker 2015; Biber 2017; Wheeler 2017; Sprankling 2017; Stephens 2019) and have contributed critical analyses of the Anthropocene in discursive and jurisprudential terms (for example, Grear 2015, 2017; PhilippopoulosMihalopoulos 2017; Pottage 2019). Consistent with research findings from the social sciences and humanities, legal scholars also identify the Anthropocene as “sociogenic” rather than “anthropogenic” (Malm and Hornborg 2014, 66) in that there is a direct relationship between particular regulatory frameworks, legal practices and patterns of adverse environmental change. Indeed, English legal scholar Anna Grear argues that “patterned and predictable global and globalizing distributions of intra-species and inter-species injustice” are so “foundational to the Anthropocene-Capitalocene” that “the current ecological crisis cannot really be understood without them” (Grear 2017). Legal research clearly suggests that the institutionalized and legally protected entitlement to, and the accumulation and disposal of, “Cheap Nature” (Moore 2014) at “the scale of the global” established by European and British imperial powers in their colonization of other places and peoples in the world (Grear 2017) is a leading agent of climate change. Legal analyses of the Anthropocene are consistent with many First Nations analyses of the adverse impact of European and British colonization and legal institutions on the landscapes and countries from which diverse Indigenous legal regimes derive (Beckford et al. 2010; Borrows 2018; Tallbear 2019; Watson 2018; Langton 2003). The holistic ontologies of First Nations laws highlight and confound the anthropocentric logic of “Cheap Nature” through which Western laws construct ‘regimes of dispossession’ (Levien 2013) and entitlement. North American environmental and democratic systems are straining to sustain their current level of economic activity and material consumption . . . [and] the viability of our settlements requires that our ideologies and decisionmaking structures take account of the fact that we are embedded in nature. (Borrows 1997, 420)

214

Nicole Graham

First Nations laws are largely place-based, that is, particular to specific and dynamic geographical conditions and limits, rather than universal and abstract. Although there is no pan-Indigenous legal regime, many place-based Indigenous laws foreground the authority, contingency and presence of nonhuman life, the interdependence of all life and the situation of life in the dynamism of time (Gay’Wu Group of Women 2019). Place-based laws are at odds with legal regimes that facilitate economic models of infinite growth and global development (Pahuja 2007). Many contemporary Anglo-European legal concepts and doctrines, indeed the taxonomy of law itself, developed precisely to protect and defend the socioeconomic institutions that facilitated the conditions of the Anthropocene: “the rise of industrialisation and a growth-based economy with its attendant political and economic philosophies of liberalism and capitalism” (Graham 2014, 410). Central to the taxonomy of modern Western law is its public/private dichotomy by which it regulates the distribution and entitlement to the things of the world into separate spheres—things for everyone and things for some. It is a distinction regarded as “a keystone of the semantic architecture of Western law” (Pottage and Mundy 2004, 3) and is ordered hierarchically. The research of legal historian Dan Priel suggests that the origin of the taxonomic separation of public/private law in the development of English law was “manufactured” to “shield” private interests from “the pursuit of collective goals” in liberal democracies (Priel 2013, 504–505). Historical accounts of the development of law’s taxonomy are consistent with analyses of the current overarching regulatory framework of “regulatory capitalism” through which markets themselves have now become “important national, regional and global regulators” (Braithwaite 2008, 29) protecting private interests from public interests such as taxation and industrial relations. Indeed, the largest economies in the world today are no longer those of nation-states but of private corporations. The private sphere is thus the locus of the vast majority of the goods of life, and the legal rights to those goods are concentrated largely in the key institutions of private law: the corporation and private property. Notwithstanding variations of legal culture across jurisdictions that support capital economies, the legal forms of private property and the corporation commonly underpin their function, socio-material relations and cultural discourses of entitlement (Graham 2012, 2014; Keenan 2015; Wheeler 2017). These dominant and ubiquitous legal forms are abstract, but their material manifestation is recognized by legal researchers to facilitate global environmental harms (Sax 2008; Coyle and Morrow 2004; Graham 2014; Wheeler 2012). “[T]here are virtually always environmental effects that exacerbate climate change involved in most corporate activity” (Wheeler 2012, 95–96). One explanation for the failure of law’s key institutions is precisely their abstractness (Graham 2011; Wheeler 2017): they are not conceptualized or situated within any geographical and metabolic relations and limits (Wheeler 2012, 2017; Graham 2020). “The structure of the corporate form in terms of its purpose and its relationships is incompatible with the world’s fragile environmental ecosystem” (Wheeler 2017, 296). It is clear from First Nations analyses, climate science metrics, social science scholarship

Learning sacrifice 215 and legal research that the interaction of Western private law and Earth’s laws adversely impacts on the Earth’s systems. So, the jury is in: law is a contingent feature of planetary health. It is imperative to urgently redress the contribution of law to the conditions of the Anthropocene: institutionalized entitlement, accumulation and disposal of “cheap nature” at a global scale; a taxonomy that separates and prioritizes private over public interests, and; the incompatibility of private property and the corporation with viable human-nonhuman relations. But it is hard to reimagine law in relation to any of its subfields without noticing that its fundamental taxonomic structure and logic work against reforms of the “bold and drastic” kind urged by climate scientists to transform institutional “barriers to adaptation” (McDonald 2010, 11). Whatever law reforms are conceived and applied to live better (or at all) in the Anthropocene, unless they can overcome the taxonomic separation and priority of things for some over things for everyone, their effectiveness is unlikely. The conditions of the Anthropocene are particular to certain socio-economic and legal institutions and practices, but their effects are not. “To continue current global trends of ‘progress and development’ is to ensure the decline of all life on earth” (Watson 2018, 125). Legal education Since the 1990s, the United Nations has identified the higher education sector as central to developing an environmentally viable future, given its role in teaching and qualifying the several professions whose roles, collectively, shape our world (UN 2015). Legal education plays an important part in facilitating and regulating anthropogenic environmental change by reproducing certain knowledge and skills used by generations of legal professionals and policymakers (Graham 2014). Teaching the climate-striker generation a taxonomy of law that is in crisis, together with its environmentally harmful legal forms and institutions, is inconsistent with the conclusions of scientific, social and legal research and at odds with international consensus about pathways out of the Anthropocene. As Jessup and Carroll observe “[t]raditional legal education is characterised by pedagogies [that] arose in response to the industrial revolution” (2017, 14). Change is needed. But does this necessitate novelty? “A new mode of life requires novel modes of knowledge” (Castree 2014b, 471). This is true in important ways, but it is also true that existing modes of knowledge are already available to support transformations in the dominant Western regulatory framework. Connecting diverse place-based Indigenous laws and Western scientific knowledge to Western legal frameworks and doctrines could help to overcome institutional barriers to change. Since the Anthropocene is the product of culturally specific socio-economic histories, institutions and practices, law teachers can begin by foregrounding the cultural specificity of existing laws in the context of their environmental conditions and effects. Situating core curriculum subjects within their broader socio-economic function makes it easier for students to understand the transformative potential of law to effect real world change. Context-free

216

Nicole Graham

pedagogy reproduces the abstractness of law and detaches it from material conditions. Highlighting the absence of materiality in existing laws increases students’ understanding of the significance of place-based Indigenous laws and increases the pedagogical benefit of learning Indigenous perspectives on non-Indigenous laws (Watson and Burns 2015; Graham 2009; Burns 2018; Gainsford 2018; LloroBidart 2015; Beckford et al. 2010; Holmes 2019). Students of non-Indigenous legal systems have the opportunity to learn how laws can successfully regulate human relationships with the nonhuman world over long periods of time through studying the examples of numerous and diverse place-based Indigenous laws. It also invites authentic engagement with scientific knowledge about the laws and limits of the Earth’s systems to increase environmental literacy (Graham 2014, 411; Godden and Dale 2000, 251; Lloro-Bidart 2015) and integrative thinking (Dovers 2005; Graham 2014). Learning law’s taxonomy, subdisciplines and doctrines through contextual, interdisciplinary and critical pedagogies will reveal that their current operation conflicts directly with the changes to the legal system that would be necessary to redress the legal conditions of the Anthropocene. In his analysis of how law would be affected by adaptation to twenty-first-century climate conditions, American legal scholar Eric Biber identified liberalism as the source of such conflict because it constructs individual freedom as morally prior to collective interests. “No matter which strategy we adopt and no matter which specific legal approach we use, the dramatic increase in human impairments to global systems will trigger an increase in government intrusion in individual lives and decision-making” (Biber 2017, 5). Closely regulating the private sphere is a contradiction of the structure and logic of Western law and will “test a range of legal doctrines intended to protect individual rights against government overreach” (5). Legal education for the Anthropocene facilitates students’ understanding of the fundamental challenges facing their generation and prepares them for the “sharp, sometimes bitter, legal and political contests” (65) that they will confront. If “the end of the world is more easily imaginable than the end of capitalism” (Jameson, cited in Chandler 2019, 698), then legal education is partly to blame. The Anthropocene obliges law teachers to familiarize students with research data and non-Western observations described earlier that show affluent Western society “has reached the end-point of its progress project and does not have the solutions to the crisis it constructed” (Watson 2018, 139). The most important lesson of the Anthropocene is also therefore the greatest challenge to its beneficiaries: individual freedoms must be sacrificed to collective exigencies. Overwhelming numbers of human beings need to accept higher taxes and severe curtailment of their familiar lifestyles without revolting. They must accept the reality of climate change and have faith in the extreme measures taken to combat it. They have to make sacrifices for distant threatened nations and distant future generations. (Franzen 2019)

Learning sacrifice 217 Accountability and suffering in the Anthropocene are distributed unequally across the categories of nation, culture, class, race, gender and generation in part because of the developmentalist logic built into legal positivism and the rule of law (Pahuja 2007). Conventional modes of legal education are unilateral and authoritative, reproducing legal positivism’s hierarchical top-down approach, rather than facilitating bottom-up modes of interdependence. Unilateral instruction in law to students, who on graduation will write entitlement out of, and sacrifice into, the Western legal system, dismantling its key institutional apparatus, is thus neither appropriate nor possible. Unlearning the logic of modern Western law is a challenge for both law’s teachers and its students that necessitates collaboration across disciplines, sectors, cultures, classes, races, genders and generations. Developing law students’ collaboration skills with non-law partners is critical to their ability to challenge the dominant model of law and to their capacity to apply interdisciplinary knowledge to legal contexts. Law teachers and students could identify and invite non-law and non-academic experts to co-teach part of a topic with interdisciplinary dimensions to avoid siloed approaches to higher education, since “new hybrid forms of knowledge” should be co-produced rather than led by a single discipline (Robinson 2008, 72; Leinfelder 2013; Graham 2014; Rousell 2016; Brown and Erickson 2016; Matsuda 2014). Connecting students’ knowledge of Anthropocene-producing legal doctrines to their knowledge of other disciplines and other legal regimes avoids the “splendid isolation” of environmental law from the rest of the curriculum (MacLean 2020, 25; Ong 2016). Prioritizing collaboration skills builds on and activates existing student interest and agency in climate change law and policy (Cutter-Mackenzie and Rousell 2019; Robinson 2008; MacLean 2020; Holmes 2019). By “co-producing curriculum with a growing diversity of climate-governance actors” (MacLean 2020, 25) that facilitates contextual, interdisciplinary and collaborative learning, students are empowered to further develop their field. Collaboratively, we must connect law to geographically specific and dynamic ecological conditions and limits, research materially viable regulatory practices founded on knowledge of the Earth’s laws that are manifest in non-Western legal regimes and figure out how to prohibit the extraction, production and disposal of the goods of life in “shadow places” for the almost exclusive benefit of the “nice places” (Plumwood 2008; TallBear 2019). Visualizing the Anthropocene through place-based learning (Van Wagner 2017) is another helpful pedagogy that can expose law students to “the abattoirs, the hidden cities, the internal ecosystems and impacts of climate change” (Schlosberg 2016, 14) to foreground questions of climate justice in material, rather than abstract, terms. There are many reasons (and resources) for law teachers to teach differently. Law teachers have detailed and deep knowledge of the topics that they teach and may already (be able to) adopt contextual and interdisciplinary pedagogies, drawing from a wealth of relevant research in environmental education, sustainability education and law reform. Law teachers could wait for “top-down structural changes to happen over time” (Rousell 2016, 142) but climate change is a time-sensitive problem and “the rate at which these legal changes will be developed” will not wait (Biber 2017, 42; Slaughter 2012). Whether it is

218

Nicole Graham

confidence, competence or permission that is needed, teachers “need to take up their potentially catalytic role in creating and sustaining social foresight” (Rousell 2016, 142) as a matter of urgency.

Conclusion Climate change is accompanied by the increase and intensification of food, water and energy insecurity. If organized human societies survive this existential threat, they will have necessarily corrected the conditions of the Anthropocene through “bold and drastic transformations” (Ripple et al. 2019, 3). Law teachers and students of the twenty-first century will have supported the change by unlearning the abstract logic and dichotomous structure of laws appurtenant to infinite-growth economies, and in their place aligned law’s logic and structure to its earthly limits. The dominance of individual rights and freedom in legal and cultural discourses will have been replaced by the legal priority of community, care and relationality (Nedelsky 2011). Having rejected settler relations and their plundered profits, the privileged few living in “nice places” (Plumwood 2008) will have learned sacrifice to protect and “sustain good relations among all the beings that inhabit these lands” (TallBear 2019).

References Anderson, C.M., R.S. DeFries, R. Litterman, P.A. Matson, D.C. Nepstad, S. Pacala, W.H. Schlesinger, et al. 2019. “Natural Climate Solutions Are Not Enough: Decarbonizing the Economy Must Remain a Critical Priority.” Science 363, no. 6430: 933–934. Baker, S. 2015. “Adaptive Law in the Anthropocene.” Chicago-Kent Law Review 90, no. 2: 563–584. Beckford, C., C. Jacobs, N. Williams and R. Nahdee. 2010. “Aboriginal Environmental Wisdom, Stewardship and Sustainability: Lessons from the Walpole Island First Nations, Ontario, Canada.” The Journal of Environmental Education 41, no. 4: 239–248. Biber, E. 2017. “Law in the Anthropocene Epoch.” Georgetown Law Journal 106, no.1: 1–68. Borrows, J. 1997. “Living between Water and Rocks: First Nations, Environmental Planning and Democracy.” The University of Toronto Law Journal 47: 417–468. Borrows, J. 2018. “Earth-Bound: Indigenous Laws and Environmental Reconciliation.” In Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings, edited by M. Asch, J. Borrows and J. Tully. Toronto: University of Toronto Press. Boyd, W. 2010. “Climate Change, Fragmentation, and the Challenges of Global Environmental Law: Elements of a Post-Copenhagen Assemblage.” University of Pennsylvania Journal of International Law 32, no. 2: 457–550. Braithwaite, J. 2008. Regulatory Capitalism: How It Works, Ideas for Making It Work Better. Cheltenham: Edward Elgar. Brondizio, E.S., K. O’Brien, X. Bai, F. Biermann, W. Steffen, F. Berkhout, C. Cudennec, et al. 2016. “Re-Conceptualizing the Anthropocene: A Call for Collaboration”’ Global Environmental Change 39: 318–327. Brown, P.G. and J.D. Erickson. 2016. “How Higher Education Imperils the Future: An Urgent Call for Action.” Balance (March): 42–48. Burns, M. 2018. “Are We There Yet? Indigenous Cultural Competency in Legal Education.” Legal Education Review 28, no. 2: 215–243.

Learning sacrifice 219 Castree, N. 2014a. “The Anthropocene and Geography I: The Back Story.” Geography Compass 8, no. 7: 436–449. Castree, N. 2014b. “The Anthropocene and Geography III: Future Directions.”’ Geography Compass 8, no. 7: 464–476. Chakrabarty, D. 2009. “The Climate of History: Four Theses.” Critical Inquiry 35, no. 2: 197–222. Chakrabarty, D. 2016. “‘Whose Anthropocene? A Response.’ In Whose Anthropocene? Revisiting Dipesh Chakrabarty’s ‘Four Theses,’ edited by R. Emmett and T. Lekan.” RCC Perspectives: Transformations in Environment and Society 2: 101–144. Chandler, D. 2019. “The Death of Hope: Affirmation in the Anthropocene.” Globalizations 16, no. 5: 695–706. Coyle, S. and K. Morrow. 2004. The Philosophical Foundations of Environmental Law: Property, Rights and Nature. Oxford: Hart Publishing. Crist, E. 2013. “On the Poverty of Our Nomenclature.” Environmental Humanities 3, no. 1: 129–147. Crutzen, P.J. 2002. “Geology of Mankind.” Nature 415, no. 6867: 23. Crutzen, P.J. and E.F. Stoermer. 2000. “The ‘Anthropocene.’” IGBP Newsletter 41 (May): 17–18. Cutter-Mackenzie, A. and D. Rousell. 2019. “Education for What? Shaping the Field of Climate Change Education with Children and Young People as Co-Researchers.” Children’s Geographies 17, no. 1: 90–104. Dovers, S. 2005. “Clarifying the Imperative of Integration Research for Sustainable Environmental Management.” Journal of Research Practice 1, no. 2: Article M1. Foucault, M. 1972. The Order of Things: An Archaeology of the Human Sciences. New York: Vintage. Franzen, J. 2019. “What If We Stopped Pretending the Climate Apocalypse Can Be Stopped?” New Yorker, September 8, 2019. Gainsford, A. 2018. “Connection to Country: Place-Based Learning Initiatives Embedded in the Charles Sturt University Bachelor of Laws.” Legal Education Review 28, no. 2: 1–15. Gay’Wu Group of Women. 2019. Song Spirals: Sharing Women’s Wisdom of Country through Songlines. Sydney: Allen & Unwin. Gilbert, Jane. 2016. “Transforming Science Education for the Anthropocene – Is It Possible?” Research in Science Education 46, no. 2: 187–201. Godden, L. and P. Dale. 2000. “Interdisciplinary Teaching in Law and Environmental Science: Jurisprudence and Environment.” Legal Education Review 11, no. 2: 239–251. Graham, N. 2009. “Indigenous Property Matters: Embedding Indigenous Content and Perspectives in Real Property.” Legal Education Review 19, no. 2: 289–304. Graham, N. 2011. Lawscape: Property, Environment, Law. New York: Routledge. Graham, N. 2012. “Dephysicalisation and Entitlement: Legal and Cultural Discourses of Place as Property.” In Environmental Discourses in International and Public Law, edited by K. Rubenstein and B. Jessup, 96–119. Cambridge: Cambridge University Press. Graham, N. 2014. “This Is Not a Thing: Land, Sustainability and Legal Education.” Journal of Environmental Law 26, no. 3: 395–422. Graham, N. 2020. “Dephysicalised Property and Shadow Lands.” In Handbook of Space, Place and Law, edited by R. Bartel and J. Carter. Cheltenham: Edward Elgar. Grear, A. 2015. “Deconstructing Anthropos: A Critical Legal Reflection on ‘Anthropocentric’ Law and Anthropocene ‘Humanity.’” Law Critique 26, no. 3: 225–249. Grear, A. 2017. “‘Anthropocene, Capitalocene, Chthulucene:’ Re-encountering Environmental Law and Its ‘Subject’ with Haraway and New Materialism.” In Reimagining Environmental Law and Governance for the Anthropocene, edited by L. Kotze, 77–95. Oxford: Hart Publishing.

220

Nicole Graham

Griscom, B., J. Adams, P.W. Ellis, R.A. Houghton, G. Lomax, D.A. Miteva, W.H. Schlesinger, et al. 2017. “Natural Climate Solutions.” Proceedings of the National Academy of Sciences of the United States of America 114, no. 44: 11645–11650. Hamilton, C. and J. Grinevald. 2015. “Was the Anthropocene Anticipated?” Anthropocene Review 2, no. 1: 59–72. Haraway, D. 2015. “Anthropocene, Capitalocene, Plantationocene, Chthulucene: Making Kin.” Environmental Humanities 6: 159–165. Holmes, V. 2019. “Climate Strikers Go to Law School.” Paper presented at the Legal Education Research Conference, UNSW Law, Sydney, November 27–28, 2019. Hornborg, A. 2019. “Colonialism in the Anthropocene: The Political Ecology of the MoneyEnergy-Technology Complex.” Journal of Human Rights and Environment 10, no. 1: 7–21. Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. 2019. The Global Assessment Report on Biodiversity and Ecosystem Services: Summary for Policymakers. Bonn: IPBES. Jessup, B. and C. Carroll. 2017. “The Sustainability Business Clinic—Australian Clinical Legal Education for a ‘New Environmentalism’ and New Environmental Law.” Environmental and Planning Law Journal 34, no. 6: 542–559. Keenan, S. 2015. Subversive Property: Law and the Production of Spaces of Belonging. London: Routledge. Kotze, L.J. 2014. “Rethinking Global Environmental Law and Governance in the Anthropocene.” Journal of Energy and Natural Resources Law 32, no. 2: 121–156. Langton, M. 2003. “The ‘Wild,’ the Market and the Native: Indigenous People Face New Forms of Global Colonization.” In Decolonizing Nature: Strategies for Conservation in a Post-Colonial Era, edited by W. Adams and M. Mulligan. Earthscan. Latour, Bruno. 2014. “Agency at the Time of the Anthropocene.” New Literary History 45, no. 1: 1–18. Leinfelder, R. 2013. “‘Assuming Responsibility for the Anthropocene: Challenges and Opportunities in Education.’ In Anthropocene: Envisioning the Future of the Age of Humans, edited by H. Trischler.” RCC Perspectives 3: 9–18. Levien, M. 2013. “Regimes of Dispossession: From Steel Towns to Special Economic Zones.” Development and Change. 44, no. 2: 381–407. Lloro-Bidart, T. 2015. “A Political Ecology of Education in/for the Anthropocene”’ Environment and Society: Advances in Research 6: 128–148. MacLean, Jason. 2020. “Curriculum Design for the Anthropocene.” McGill Journal of Sustainable Development Law 16, no. 1: 1–36. Malm, A. and A. Hornborg. 2014. “The Geology of Mankind? A Critique of the Anthropocene Narrative.” Anthropocene Review 1, no. 1: 62–69. Matsuda, M.J. 2014. “Admit that the Waters around You Have Grown: Change and Legal Education.” Indiana Law Journal 89, no. 4: 1381–1400. McDonald, J. 2010. “Mapping the Legal Landscape of Climate Change Adaptation.” In Adaptation to Climate Change: Law and Policy, edited by T. Bonyhady, A. Macintosh and J. McDonald, 1–37. Annandale: Federation Press. McManus, P. and G. Haughton. 2006. “Planning with Ecological Footprints: A Sympathetic Critique of Theory and Practice.” Environment and Urbanisation 18, no. 1: 113–127. Merchant, C. 1980. The Death of Nature: Women, Ecology, and the Scientific Revolution. San Francisco: Harper & Row. Moore, J.W. 2014. “The End of Cheap Nature.” In Structures of the World Political Economy and the Future of Global Conflict and Cooperation, edited by C. Suter and C. Chase-Dunn, 285–313. Berlin: LIT Verlag.

Learning sacrifice 221 Moore, J.W. 2017. “The Capitalocene, Part I: On the Nature and Origins of Our Ecological Crisis.” Journal of Peasant Studies 44, no. 3: 594–630. Nedelsky, J. 2011. Law’s Relations: A Relational Theory of Self, Autonomy, and Law. Oxford University Press. Office for Climate Education. 2018. IPCC Special Report: Global Warming of 1.5°C— Summary for Teachers. Paris: OCE. Ong, D.M. 2016. “Prospects for Integrating an Environmental Sustainability Perspective within the University Law Curriculum in England.” Law Teacher 50, no. 3: 276–299. Pahuja, S. 2007. “Beheading the Hydra: Legal Positivism and Development.” Law, Social Justice & Global Development Journal 1. Philippopoulos-Mihalopoulos, A. 2017. “Critical Environmental Law in the Anthropocene.” In Reimagining Environmental Law and Governance for the Anthropocene, edited by L. Kotze, 117–136. London: Bloomsbury. Plumwood, V. 2008. “Shadow Places and the Politics of Dwelling.” Australian Humanities Review 44: 139–150. Pottage, A. 2019. “Holocene Jurisprudence.” Journal of Human Rights and the Environment 10, no. 2: 153–175. Pottage, A. and M. Mundy. 2004. Law, Anthropology and the Constitution of the Social: Making Persons and Things. Cambridge: Cambridge University Press. Priel, D. 2013. “The Political Origins of English Private Law.” Journal of Law and Society 40, no. 4: 481–508. Rayfuse, R. 2010. “The Anthropocene, Autopoiesis and the Disingenuousness of the Genuine Link: Addressing Enforcement Gaps in the Legal Regime for Areas beyond National Jurisdiction.” In The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments, edited by E.J. Molenaar and A.G. Oude Elferink, 165–190. Leiden: Martinus Nijhoff. Ripple, W.J., C. Wolf, T.M. Newsome, P. Barnard and W.R. Moomaw. 2019. “World Scientists’ Warning of a Climate Emergency.” BioScience 70, no. 1: 8–12. https://doi. org/10.1093/biosci/biz088. Ripple, W.J., C. Wolf, T.M. Newsome, M. Galetti, M. Alamgir, E. Crist, M.I. Mahhoud, et al. 2017. “World Scientists’ Warning to Humanity: A Second Notice”’ BioScience 67: 1026–1028. Robinson, J. 2008. “Being Undisciplined: Transgressions and Intersections in Academia and Beyond.” Futures 40, no. 1: 70–86. Rousell, D. 2016. “Dwelling in the Anthropocene: Reimagining University Learning Environments in Response to Social and Ecological Change.” Australian Journal of Environmental Education 32, no. 2: 137–153. Sax, J. 2008. “Environmental Law Forty Years Later: Looking Back and Looking Ahead.” In Biodiversity Conservation, Law and Livelihoods, edited by M.I. Jeffery, J. Firestone and K. Bubna-Litic, 9–25. Cambridge: Cambridge University Press. Schlosberg, D. 2016. “Environmental Management in the Anthropocene.” In Oxford Handbook of Environmental Political Theory, edited by T. Gabrielson, C. Hall, J.M. Meyer and D. Schlosberg, 193–208. Oxford: Oxford University Press. Seto, K., S.J. Davies, R.B. Mitchell, E.C. Stokes, G. Unruh and D. Ürge-Vorstaz. 2016. “Carbon Lock-In: Types, Causes, and Policy Implications.” Annual Review of Environment and Resources 41: 425–452. Slaughter, R. 2012. “Welcome to the Anthropocene.” Futures 44, no. 2: 119–126. Sprankling, J. 2017. “Property Law for the Anthropocene.” Arizona Law Review 59, no. 3: 737–772.

222

Nicole Graham

Steffen, W., K. Richardson, J. Rockström, S.E. Cornell, I. Fetzer, E.M. Bennett, R. Biggs, et al. 2015. “Planetary Boundaries: Guiding Human Development on a Changing Planet.” Science 347, no. 6223: 1259855. Steffen, W., J. Rockström, K. Richardson, T.M. Lenton, C. Folke, D. Liverman and C.P. Summerhayes. 2018. “Trajectories of the Earth System in the Anthropocene.” Proceedings of the National Academy of Sciences of the United States of America 115, no. 33: 8252–8259. Stephens, T. 2019. “Governing Antarctica in the Anthropocene.” In Anthropocene Antarctica: Perspectives from the Humanities, Law and Social Sciences, edited by E. Leane and J. McGee, 17–32. Abingdon: Routledge. TallBear, K. 2019. “Caretaking Relations, Not American Dreaming.” Kalfou 6, no. 1: 24–41. United Nations. 2015. “Transforming Our World: The 2030 Agenda for Sustainable Development.” UN General Assembly, A/RES/70/1. Van Nes, E.H., B.M.S. Arani, A. Staal, B. van der Bolt, B.M. Flores, S. Bathiany and M. Scheffer. 2016. “What Do You Mean ‘Tipping Point’?” Trends in Ecology and Evolution 31, no. 12: 902–904. Van Wagner, E. 2017. “‘Seeing the Place Makes It Real:’ Place-Based Teaching in the Environmental and Planning Law Classroom.” Environmental and Planning Law Journal 34, no. 6: 522–541. Watson, I. 2018. “Aboriginal Relationships to the Natural World: Colonial ‘Protection’ of Human Rights and the Environment.” Journal of Human Rights and the Environment 9, no. 2: 119–140. Watson, I. and M. Burns. 2015. “Indigenous Knowledges: A Strategy for Indigenous Peoples Engagement in Higher Education.” In Higher Education and the Law, edited by S. Varnham, P. Kamvounias and J. Squelch, 41–52. Annandale: Federation Press. Wheeler, S. 2012. “Climate Change, Hans Jonas and Indirect Investors.” Journal of Human Rights and Environment 3, no. 1: 92–115. Wheeler, S. 2017. “The Corporation and the Anthropocene.” In Reimagining Environmental Law and Governance for the Anthropocene, edited by L. Kotze, 289–307. London: Bloomsbury. World Meteorological Organization. 2019. WMO Provisional Statement on the State of the Global Climate in 2019. Geneva: WMO.

15 Indigenous ecological knowledge and the transition to ecological law in the United States Hillary M. Hoffmann

Introduction The dawn of environmental law in the United States in the 1970s brought great promise of cleaner air, cleaner water, less pollution and the hope that new laws could improve human health and the quality of human life (Houck 2019). The 50 years that followed the passage of landmark laws like the Clean Air Act, the Clean Water Act and the National Environmental Policy Act brought some improvements to environmental quality, but largely failed to bring about the changes many had hoped they would force (ELGA 2016). One reason for this is a significant design flaw in the statutes, which all take a piecemeal approach to improving environmental quality and ecological health. Another is that they lack specificity, which has allowed politically driven governmental agencies charged with implementing them to “interpret” the statutes in a way that undermines their intended purposes (Chevron v. NRDC). And critically, these statutes largely ignored Indigenous nations and the special environmental justice issues they faced, or included them as a legislative afterthought (LaDuke 1994). In an attempt to address the failings of this approach to improving environmental quality, there have been growing calls for a new system of laws. One proposal for this new system has been labeled “ecological law,” and is rooted in the need to protect and restore ecological systems (Wroth 2019). According to the Oslo Manifesto for Ecological Law and Governance, the new system demands an approach to law “based on ecocentrism, holism, and intra-/intergenerational and interspecies justice” (ELGA 2016). In the United States, support for a wholesale shift to ecological law has been somewhat minimal except among academics (Houck 2019), and courts have been very skeptical of claims advancing ecological rights, particularly the “rights of nature” (Boyd 2018). Although this reluctance may have slowed the implementation of ecological law principles in this country, it has in other ways provided the nation with an opportunity—a chance to design a system of ecological law that more accurately represents the values of twentyfirst-century America. Essential components of this system are the ecological laws, science and other ecological knowledge of the nation’s first environmental stewards. Indigenous scholars have been advocating for greater inclusion of Indigenous ecological

224

Hillary M. Hoffmann

knowledge in environmental law for decades, but these calls have not yet resonated in the halls of Congress (LaDuke 1994; Tsosie 1996, 245). This chapter focuses on developing legal protections for the use of tribal ecological knowledge outside what is known in US law as Indian Country, or the areas in which tribes have legal authority to regulate and manage environmental quality without external interference. Outside Indian Country, tribes must work with federal agencies to protect tribal values in what are now deemed “federal” lands, and short of a wholesale revision of federal environmental laws in the US, tribes must continue to find innovative ways to use existing laws and legal doctrines to apply tribal ecological knowledge outside Indian Country. This chapter explores one of those ways.

Historical foundations—colonization and the suppression of Indigenous peoples in the US As former United States Supreme Court Chief Justice John Marshall wrote in 1831, “the relations of the Indians to the United States is [sic] marked by peculiar and cardinal distinctions which exist no where else” (Cherokee Nation v. Georgia). These peculiarities and distinctions have resulted in a legal system in which tribes occupy an important constitutional (and sometimes, extra-constitutional) role as sovereign governmental entities overseeing millions of acres of Indian Country, encompassing a vast array of diverse ecosystems throughout the United States, while being legally excluded from decision-making processes involving other lands owned by the federal government, states and non-Indigenous citizens unless they possess extra-territorial treaty rights (Kronk Warner 2016, 953; Hoffmann 2017). This legal system is dichotomous in ways that are hard for even seasoned scholars of Indian law to comprehend—for example, the Supreme Court recognizes tribal governments as sovereign, yet the Court also recognizes that Congress possesses “plenary power” over their lands (Hoffmann 2017, 359). In the area of environmental law, this dichotomy has resulted in a relative mishmash of alternating tribal, federal and state authority within Indian Country, and beyond, which has rendered holistic management of many ecosystems quite difficult, if not impossible (Hoffmann 2017). The roots of the current system of environmental law began at contact—when Europeans arrived in what is now the United States and encountered Indigenous nations that had deep-rooted connections with their lands and the attendant ecological systems dating back, in some cases, thousands of years (LaDuke 1994; Tsosie 1996). While the Europeans were in some ways reliant on Indigenous peoples to share their ecological knowledge for the benefit of the newly forming colonies, they also simultaneously feared Indigenous peoples and wanted to occupy the continent free from interference they assumed that tribes would bring (LaDuke 1994). The desire for land, and the political and military strength of many tribes, propelled the signing of many treaties in which tribes retained legal rights to access and use ceded lands and waters for cultural, subsistence and other purposes, and the US government gained land for its burgeoning population (Hoffmann and Mills 2020). When treaty-making ceased to be expedient enough,

Tribal ecological knowledge 225 Congress passed statutes authorizing wholesale seizure of Indigenous lands, and the European fears of cultural contamination and savagery were used to validate these laws in the earliest Supreme Court cases to analyze the relative legal rights of Indigenous peoples (Johnson v. M’Intosh). Those early cases created rules of law that Indigenous peoples lacked the same legal rights to land as nonIndigenous peoples, and yet simultaneously recognized tribal sovereignty over tribal lands (Hoffmann and Mills 2020, chap. 2). In these early cases, the Court also drew jurisdictional lines using territorial boundaries—inside the boundaries of what came to be known as Indian Country, tribes generally had jurisdiction and regulatory authority, subject to a few exceptions, and elsewhere tribes lacked jurisdiction and regulatory authority, unless Congress had authorized it, or the tribe reserved those rights in a treaty (Oliphant v. Suquamish Tribe).1 After the early Supreme Court cases established the land ownership rules, the process of colonization took off with lightning speed (LaDuke 1994). Congress passed more land and resource-acquisition statutes, which were implemented with gusto by the executive branch, divesting tribes of nearly two-thirds of their land base by the end of the nineteenth century. As conflicts among tribes and settlers, states and corporations inevitably arose, the Supreme Court resolved them against the tribes (Hoffmann and Mills 2020). The effect of this near plenary colonization, which some have labeled a genocide, destroyed some tribal governments permanently, left others in tatters, displaced people from their lands, removed aspects of tribal sovereignty, prohibited the use of Indigenous languages and religious rituals used to transmit history and, in certain periods, attempted to extinguish Indigenous nations and Indigenous peoples entirely (LaDuke 1994; Deloria 2003). Colonization was particularly effective in severing Indigenous connections to land through the nineteenth-century laws of removal and allotment, during which the US government forcibly removed tribal nations from their homelands and moved them to reservations, sometimes in far distant states or territories (LaDuke 1994). At the same time, Congress passed dozens of statutes aimed at spurring nonIndigenous settlement of what were once Indigenous lands, and development of natural resources like minerals, timber and water (Coggins et al. 2014). The laws that Congress passed during this period were based on the principle of Manifest Destiny, in which Christian “armies” of European settlers would march across the North American continent, “settle” its lands and claim their birthright in the name of God and country (Miller 2016, 8). Between 1887 and 1934, “the total Indian land estate dropped from 140 million acres . . . to 50 million acres . . . thus transferring about seven percent of all land in the forty-eight states to nonIndian settlers and corporations” (8). The European-derived legal system used to effectuate this colonization of tribal lands brought notions of dominion over natural resources, and the concept of legal ownership not only of land, but also of components of an ecosystem, which sometimes legally severed ecosystems into different legal “estates.”2 Under this system, one individual or corporate entity could acquire legal rights to a parcel of land, and others could acquire rights to the trees growing there, or the water or minerals underneath it (Coggins et al. 2014).

226

Hillary M. Hoffmann

As a result of the overuse and depletion of natural resources during the nineteenth century, even tribes that had negotiated treaty rights to hunt, gather and fish on ceded lands (now subject to state and federal jurisdiction) could not exercise them. Moreover, the vast majority of tribes that did not secure treaty rights guaranteeing access to and use of extra-territorial lands and resources faced even more perilous battles. The Europeans and European-Americans were so effective in decimating some of these tribes, such as the Indigenous nations of the New England region, that Indigenous knowledge of these ecosystems has been removed from the decision-making regime in these places for over 200 years (Hoffmann and Mills 2020). In the New England of the twenty-first century, there is no Indian Country, there are very few federally recognized tribes and there are no laws requiring Indigenous consent to use and develop former Indigenous lands, much less any laws requiring consultation with Indigenous peoples about the use of stolen Indigenous lands and resources (Hoffmann and Mills 2020).

Indigenous ecological knowledge and the dawn of environmental law The effects of colonization on Indigenous ecological knowledge varied depending on the Indigenous nation and the methods used to survive colonization. For tribes that remain on their ancestral lands, ecological knowledge was often successfully preserved and transmitted to younger generations (for example, in tribal codes or through oral traditions), ensuring a continuity of environmental law and values over time (LaDuke 1994). For tribes that were removed, the ecological knowledge of far-away homelands may have been lost entirely, or if even retained, the tribe may have been left without any legal rights to use it (Hoffmann and Mills 2020). Some tribes that were removed developed new ecological knowledge, and even codified it into tribal laws, on the reservations to which they were removed (for example, the Ho-Chunk Tribal Code). Regardless of their history, though, one important aspect of tribal sovereignty today is the right to codify ecological knowledge and values into tribal laws, which are the primary laws governing Indian Country (Hoffmann and Mills 2020). Outside Indian Country, tribes retain significant legal rights too. Until Congress stopped the practice of making treaties with Indigenous nations in 1871, the United States negotiated hundreds of treaties guaranteeing tribes and tribal members certain extraterritorial rights and, sometimes, without limits (Carpenter 2009). These treaties ensured that tribal members could continue to hunt, fish and gather plants and medicine “at the usual and accustomed places,” even though the lands might shift to federal, state or private ownership (Carpenter, 113). Congress has abrogated some treaty rights, but hundreds of treaties survived the colonization period of the nineteenth century and remain the supreme law of the land today, according to the Supremacy Clause of the US Constitution. As recently as 2019, the Supreme Court recognized the strength of off-reservation treaty hunting rights for the Crow Tribe in a national forest in Wyoming, allowing tribal members to hunt on their ceded lands without state hunting licenses (Herrera v. Wyoming).

Tribal ecological knowledge 227 Tribal treaty rights were incorporated into a few environmental laws of the 1970s and 1980s, such as the Endangered Species Act, but the full array of tribal on-reservation and off-reservation rights were ignored. Congress took a somewhat one-size-fits-all approach to the federally recognized tribes in the areas of clean air, clean water and safe drinking water, allowing those tribes the opportunity to submit applications to the federal Environmental Protection Agency (EPA) to seek primacy in setting air quality and water quality standards on their reservations (Hoffmann 2017, 342), using a common application system and uniform set of criteria with which to evaluate the validity of the tribal applications. The system EPA adopted at least theoretically allowed a tribe to obtain regulatory primacy and use Indigenous ecological knowledge to set air or water quality standards, according to tribal science and tribal values (Tsosie 1996), but there were serious limits. Some tribes were excluded from applying because they were not federally recognized (Hoffmann 2017). Some tribes could not gain approval due to the exacting and specific standards set by EPA (Hoffmann 2017). Some tribes lacked funding and resources to hire attorneys to draft the necessary application documents, submit them and advocate before the agency, and potentially the courts, on the tribe’s behalf. Other statutes, such as the major law regulating solid waste disposal, seemed to overlook tribes entirely (Tsosie 1996). The statutes that aimed to increase accountability of governmental agencies making decisions about environmental standards and enforcement, such as the Administrative Procedures Act and the National Environmental Policy Act, largely treated tribal members the same as any other US citizen, which marginalized and diminished treaty rights and other sovereign rights unique to tribal nations (Tsosie 1996). Finally, Indigenous scholars have pointed out that the values underlying these environmental laws are arguably the wolf of colonialism, dressed in sheep’s clothing of progressive environmental values (Tsosie 1996). On the whole, the system contains similar components as in the past, although with slightly different players—a federal agency, EPA or the Bureau of Indian Affairs serves as the gatekeeper to a system of external laws forced upon Indigenous nations, allowing them to participate when they agree to shape their environmental laws in a way that fits the external goals and standards. Very few tribes have in fact opted into the environmental federalism structure of the Clean Air Act, the Clean Water Act and the Safe Drinking Water Act (Hoffmann 2017).3 For tribes that do opt into this system, and receive approval from the federal government to regulate their air or water quality, the regulatory power they can obtain under the Clean Air Act, Clean Water Act and others is worth considering, especially because it allows some degree extra-territorial regulation, which tribes would otherwise lack according to the Supreme Court’s jurisdiction rules (Hoffmann 2019, 392). At least one tribe, the Pueblo of Isleta, has used this regulatory power to impose heightened pollution control requirements on upstream municipal polluters to protect sacred tribal waters, although few others have been successful in following its lead (Tsosie 1996). Some tribes with off-reservation treaty rights have been able to force federal and state agencies to protect the species

228

Hillary M. Hoffmann

central to the exercise of the treaty right, such as salmon (Hoffmann and Mills 2020). For others, though, different and more creative strategies were necessary to protect off-reservation lands and waters.

Islands of hope—the Bears Ears Coalition tribes and a different approach to creating off-reservation legal rights to use tribal ecological knowledge Treaty-making, removal, allotment and the federal natural resources disposal era did not produce uniform results in every tribal nation (Krakoff 2018). The tribes of the “Four Corners” region, where the modern states of Utah, Colorado, Arizona and New Mexico meet, resisted allotment and the accompanying federal policy of assimilation heartily (Deloria 2003). The Navajo Nation, in what is now eastern Arizona and western New Mexico, experienced removal, allotment and the establishment of a reservation but emerged with its aboriginal territory somewhat intact (Krakoff 2018). Other tribes of the Four Corners region, like the Hopi and Ute, experienced only partial allotment and assimilation, but eventually saw devastating and “arbitrary line-drawing” around their aboriginal territory, which effectively allocated large amounts of it to another tribe, or to an encroaching state (Krakoff 2018). Yet others, like the pueblos of New Mexico, were able to protect islands of sovereign lands and villages from the destructive reach of federal Indian policy, although they lost access to the arable river bottoms that they once farmed (Krakoff 2018). Each member tribe of what became the Bears Ears Inter-Tribal Coalition has a unique relationship with the ecosystems of the Bears Ears region. The Ute were historically semi-nomadic, moving from alpine camps in the Rocky Mountains in the summer down to the high desert lands of the mountains’ eastern and western slopes in the winter, following the herds of deer and elk, which they hunted and relied upon in numerous ways (Maynard 1999, 241). Ute bands were known to move up to 400 miles between seasonal camps, even before they acquired horses from the Spanish, and the western reach of their territory included a region centered around kwiyagatu nukavachi, or the Bears Ears, twin buttes rising from a high desert monocline in what is now southeastern Utah (Sacred Land 2019). Allotment and the reservation policy were devastating to the Ute, largely because they could not continue their nomadic hunting and settlement patterns and were restricted to smaller and smaller parcels, cutting off their access to large game and seasonal camps. Eventually, they were forced onto a small reservation near Towaoc, Colorado, about 100 miles east of the Bears Ears buttes. Throughout history, the Ute people have described their relationship with the Bears Ears region, and indeed much of the Colorado Plateau, as one based on principles of stewardship and mutual reliance. Their relationship to the land in this region is so tightly entwined that, according to Ute leader Regina Lopez-Whiteskunk, ecological protection “is who we are” (2016). To the Ute, ecological protection includes a general duty toward certain places, and also certain specific acts of caring for those places, including acts of prayer and reflection. It also reflects a

Tribal ecological knowledge 229 long-held principle of Ute reliance on “what the land provides” for them, which includes medicinal and other plants, as well as forage for their sheep and horses. To the south of the traditional Ute lands, the Zuni have occupied much of the territory in northeastern Arizona and northwestern New Mexico, from present day Flagstaff, Arizona, south to what is now the Tonto National Forest and east to McNary, Arizona and beyond, into western New Mexico, which is where the Zuni Reservation is located today, on a small portion of the tribe’s aboriginal homelands (Zuni Tribe v. United States). The ancestral territory of the Zuni people includes ansh an lashokdiwe, or the Bears Ears, with the steep canyon walls descending from their flanks and relatively abundant water in the valley floors providing shelter for the cliff houses they lived in and irrigation for the crops they cultivated (Enote et al. 2018). According to Jim Enote, a Zuni hunter and farmer, [t]he Zuni people have very strong ties to the Bears Ears area, and when the opportunity comes we make our pilgrimages back to the area to visit and to affirm what our oral history tells us. Bears Ears is a touchstone for the Zuni people. (Enote et al. 2018) The ancestors of the Zuni left Bears Ears in part due to climatic shifts that made the region more challenging to farm, and the story of that shift and its impact upon their ancestors is told through artwork found on cliff walls, and in Zuni blankets and pottery to this day (Enote et al. 2018). To the Zuni, the Bears Ears region is a literal library of historical information, telling the oldest stories of its ecosystems, their evolution, and the capacity of the region to maintain human habitation over time (Enote et al. 2018). The Navajo Nation, home to the Diné people, occupies the lands around what they call Shash Jaa’, or the Bears Ears buttes (Sacred Land 2019). The Diné aboriginal homelands encompass what is now the northeastern corner of Arizona, extending over the southern Utah border to the edge of the San Juan River, and east into the northwestern corner of what is now New Mexico (Navajo Tribe v. United States). Their history involves temporary forced removal to a reservation at Bosque Redondo in New Mexico, but also hearty resistance, resulting in the tribe securing permanent rights to return and live on a large portion of their homelands, secured in 1868. (Krakoff 2018). The Diné ecological knowledge of this region is vast, well documented and particularly comprehensive in relation to large carnivore species formerly and currently found in the Grand Canyon and among the canyons and mountain ranges of the southern Colorado Plateau (Peterson 2017). Bears, wolves, coyotes and jaguars are important species to the Diné, and bears especially are revered for their physical and spiritual power. Coyotes are revered for their wiliness and cunning, and the stories of coyotes can only be told in winter. According to oral tradition, the Diné performed a coyote ceremony at Bosque Rodondo where they had been forced to live after the Long Walk. This area is chosen due to the belief that the negotiators would have spiritual power, and these negotiations

230

Hillary M. Hoffmann ultimately ended with the Diné being returned to their homeland rather than settled in Indian Territory. (Peterson 2017)

Diné people share some of the ecological values with the other regional tribes, but their definition of “ecological knowledge” is unique to their culture, values and history. According to these values, there are some elements of the natural world that are unknown to people, and this is by design. The Diné accept the unknown and unexplained with reverence. They know that some things cannot, and should not, be explained. . . . [S]ome things are better left a mystery. It is those mysteries that keep Native people—including the Navajos—humble and respectful toward powers greater than themselves. This is the foundation of [Navajo] traditional ecological knowledge. (Pavlik 2014, 139) The definitional differences, and differences in underlying values attached to a natural resource or ecosystem between tribes, can complicate the task of incorporating the tribal ecological knowledge of multiple tribes into a tribal co-management framework. Yet, knowledge of the underlying cultural connections to tribal ecological knowledge is key to incorporating these values into modern natural resource decision-making processes. For each of these tribes—the Ute, Zuni, Navajo and Hopi—the Bears Ears region is central to their culture, history, and modern lifeways, but lies just outside of their jurisdictional boundaries. These tribes lack treaties that would give them legal rights to protect the Bears Ears region, or its resident plants, animals and sacred sites, and possess no special authority under any of the specific statutes mentioned earlier, which would allow them to prevent mining or other destructive activities. This is because the buttes and the surrounding region are now considered federal lands, subject to the jurisdiction of the federal government, and managed by Congress, through delegations of authority to the Department of Interior and the Bureau of Land Management (BLM) (Krakoff 2018). Should the BLM hold different values in the Bears Ears region from the tribes, the BLM can ignore the tribal values and allow uses and activities that contravene tribal values, as long as they are consistent with Congress’s broad directives in the statutes giving BLM its management authority (Hoffmann 2017). In other words, the tribes have no legal rights to protect the Bears Ears region and no legal rights for the region to be stewarded using their traditional ecological knowledge. This changed in the mid-2000s, when these tribes formed a coalition to propose a bilateral management framework for the Bears Ears region under the Antiquities Act, a statute passed in 1906 with the primary goal of protecting archaeological sites (Antiquities Act 2012). The Antiquities Act is concise—it states that [t]he President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects

Tribal ecological knowledge 231 of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments. (§ 1) Once created, the objects or areas for which the national monument was established are protected according to a monument management plan, which contains detailed requirements for the federal agency overseeing the monument. Since 1906, many presidents have used the Antiquities Act to protect not only archaeological sites, but historical monuments and important national ecosystems, which courts have recognized as “objects” of scientific interest. One of the primary goals of the coalition in proposing protection for over two million acres of federal land in the Bears Ears region as a national monument was incorporating tribal ecological knowledge as part of the legally binding management framework for this place. The coalition therefore proposed a tribal commission to advise the Bureau of Land Management on its stewardship of the Monument lands and resources, which would use the ecological knowledge of the various tribes to guide federal decision-making (Presidential Proclamation, Establishment of the Bears Ears National Monument 2016). The urgency for protecting this region, which had been sacred to the coalition tribes since time immemorial, was due to threats from extractive industries, such as oil and gas, and uranium, and high-impact recreational use in the form of off-road vehicles (Krakoff 2018). The Bears Ears region had been mined for uranium, oil and natural gas since the 1950s, and the results of this development have left permanent scars on the landscape, as well as a legacy of environmental injustice and human health problems like cancer and asthma in the surrounding tribal communities (Krakoff 2018).4 Although they acknowledged that the task of incorporating the different values of each tribe into the decision-making process within the monument would be daunting, the coalition tribes were each committed to making the Bears Ears National Monument a reality, driven by the shared goal of preserving this sacred and historic landscape for future generations (Krakoff 2018). Together, they drafted a lengthy proposal, detailing the tribal histories, connections and values in the region, and described the critical desert and semi-desert ecosystems it contains, to support a presidential designation under the Antiquities Act. The monument as proposed originally would contain over five separate ecosystems, in one of the most “ecologically intact regions” of the country (Bears Ears Inter-Tribal Coalition 2015, 4). This proposal gained instant acclaim among tribal communities—it was supported by more than 25 other southwestern tribes and, ultimately, by dozens of tribes from other regions (Bears Ears Coalition Support n.d.). Upon reviewing the proposal and consulting with various constituencies, including the tribes, state government officials, local municipalities and many scholars of natural resources and federal Indian law, President Obama created the Bears Ears National Monument on December 28, 2016, in the twilight hours of his second term in office (Krakoff 2018). The Presidential Proclamation creating the Monument extensively details its natural and cultural resources contained within

232

Hillary M. Hoffmann

the 1.3 million acres protected, as well as their value to, and historical connections with, the coalition tribes (Presidential Proclamation, Establishment of the Bears Ears National Monument 2016). The Proclamation also recorded their historical and cultural connections to the Monument, and each tribe’s current relationship with the Monument lands. To ensure that Monument management decisions were made with the benefit of the tribal expertise, “tribal ecological knowledge,” and historical context that the coalition tribes possess, President Obama created the Bears Ears Commission in the Proclamation. The Commission was required to include “one elected officer each from” the Coalition member tribes, who would represent that tribe’s cultural and ecological values in the Monument lands and resources and collaborate to advise the federal decision-making process. The Obama Proclamation awarded a great deal of discretion to the Bears Ears Commission by declining to cabin its authority, other than to clarify that the Commission had the authority to create and implement procedures governing its own activities and decisions. The Proclamation also contained clear mandates to the Secretaries of Interior and Agriculture—who would be tasked with co-managing the Monument lands from the federal side—limiting their discretion not to incorporate the Commission’s recommendations. If the agencies declined to adopt the Commission’s advice, the Proclamation required them to give formal notice of that decision, and the basis or bases for it, in writing to the Commission. The tribal collaborative management framework created in President Obama’s Proclamation was dramatically altered within a few short months, however, due to President Donald Trump’s election in November 2016. When he took office in January 2017, Trump seemed to have his sights set on Bears Ears, requiring his Secretary of Interior to start reviewing it and other large monuments for potential reductions by the spring of 2017. Despite the president’s signaling that Bears Ears might be reduced, in March 2017 the Bears Ears Commission members were elected and the Commission began its work, which initially consisted of defending the Monument from the president. In April, the newly appointed Secretary of Interior Ryan Zinke recommended to President Trump that he reduce Bears Ears and another Utah monument, the Grand Staircase-Escalante National Monument, which is what the president did in December 2017 (Presidential Proclamation 9558, Establishment of the Bears Ears National Monument 2017). Trump’s Proclamation purported to reestablish the Bears Ears National Monument as a smaller Monument with two “units,” releasing over 90% of the lands President Obama had protected and opening them to logging, mining, recreational vehicle use and other intensive activities. Trump’s Proclamation retained the tribal Commission, but renamed it the Shash Jaá Commission, using the Navajo term for the Bears Ears buttes, and limited the Commission’s role to advising the federal agencies on the management of the Shash Jaá unit alone. His Proclamation eliminated the references to, and protections for, tribal ecological knowledge in the Monument, changed the recognition of “tribal ecological knowledge” to “traditional historical knowledge” and changed the membership of the Commission (to require at least one local county commissioner). The tribal response to these Proclamations was immediate; on the same day they were issued, the tribes filed suit to invalidate

Tribal ecological knowledge 233 them, arguing that the Monument reductions were unconstitutional, contravened the Antiquities Act and several established principles of administrative law. Although the outcome of this litigation—and the fate of the Obama Bears Ears Monument—is in the hands of a federal district court judge in Washington, DC, as of 2020, what is certain is that President Obama’s incorporation of tribal collaborative management into the Bears Ears National Monument marked a watershed moment for the introduction (or reintroduction, as the tribes would argue) of tribal ecological knowledge into natural resource decision-making outside of Indian Country. The Obama Proclamation establishing Bears Ears National Monument, with a tribal commission authorized to advise the federal agencies managing the monument using principles of tribal ecological knowledge, sets an example of the potential for incorporating tribal ecological knowledge into federal public land and public natural resources decision-making, particularly for those tribes that lack treaty rights over regions or species they seek to protect or access. The national support for the Coalition tribes and the Obama Bears Ears National Monument has grown so vast that it has attracted the attention of Congress. In 2019, Representative Debra Haaland, a citizen of the Laguna Pueblo, introduced a bill in Congress to restore the original Bears Ears National Monument, but with the expanded boundaries originally proposed by the tribes. If this bill, the Antiquities Act of 2019, passes Congress, it will reinstate the more stringent protections that President Obama established in 2016 and the tribal Commission as originally designed by President Obama. That, in turn, will allow the Commission to pivot away from its current focus, on defending the Monument lands against the Trump administration’s relentless pursuit of energy mineral development and off-road vehicle use, and toward a prospective management framework using traditional ecological knowledge.

Conclusion—the path forward If a system of ecological law is developed in the US, based on the values established in the Oslo Manifesto of 2016, including “ecocentrism, holism, and intra-/ intergenerational and interspecies justice,” it must include Indigenous peoples and their ecological values (ELGA 2016). The old system of environmental laws used the rule of law to eradicate Indigenous peoples and suppress their laws, values and cultures. It also paved the way for seizing Indigenous lands. The first attempt at a new way, the environmental laws of the 1970s and 1980s, did not fully address the legal framework of the colonizer era, although it reflected Congress’s attempts to include tribes in environmental decision-making. The next attempt at legal reform must reflect a truly inclusive, just and representative system of environmental laws that accurately reflect the history, diversity and range of values of the American citizenry, including its Indigenous peoples. Examples like the Bears Ears Commission show that, in theory, and in reality, it is possible for tribes and federal agencies to use collaborative management principles to steward the vast landholdings of the American public, even under one of the old laws. Although the European-derived colonizer laws that apply to

234

Hillary M. Hoffmann

lands and natural resources outside of Indian Country are still restricted by the outdated principles driving Manifest Destiny, the discretion that many of them, like the Antiquities Act, contain has allowed Indigenous peoples to establish legal rights to sit at the management table with federal agencies. Their negotiation of the terms of the Obama Presidential Proclamation guaranteed these tribes a level of governmental access and influence to the decision-making process, which they could use to propose outcomes that are more protective of tribal values and tribal ecological knowledge. The Antiquities Act in particular has created the potential for presidents to require the use of tribal ecological knowledge to guide natural resource decision-making on public lands outside of Indian Country, in some cases restoring traditional ecological knowledge to ecosystems that have not seen it used in over a century. For tribes, like the Coalition tribes, lacking treaties guaranteeing them access to, or authority over, off-reservation lands containing vital tribal resources, this collaborative management approach under the authority of the Antiquities Act is an enticing option. It also demonstrates the viability of a collaborative management system in any new framework of ecological law. The Bears Ears model demonstrates that a transition to ecological law can benefit by, and be informed by, the people with the deepest, most fundamental and comprehensive understanding of those ecosystems—Indigenous peoples of the United States. Given the scope and breadth of the federal government’s land holdings and its legal authority over even greater subsurface and offshore natural resources under federal law, the Bears Ears framework is a valuable precedent for including tribal ecological knowledge in the management of ecosystems on millions of acres of federal lands. Short of returning aboriginal lands to tribes, which seems unlikely, the surest path to protecting those lands is through external (federal) laws. The potential for such laws is vast, and the potential for unique collaborative management agreements to guide the future design and implementation of ecological laws is equally so. If a statute like the Antiquities Act can be used to protect two million acres of high desert and desert ecosystems sacred to numerous surrounding tribes, using a combined management regime of tribal ecological knowledge, Western science and natural resources policy, it is entirely possible for a purposefully designed federal statute or series of laws to do the same elsewhere in the United States.

Notes 1 There are also two circumstances in which the Supreme Court has held that tribes might exercise civil regulatory authority over nonmembers and fee lands (which are not technically Indian Country, even when located inside a reservation), and that is if the non-tribal entity or party has consented to the exercise of tribal authority, or where the nonmember conduct “threatens or has some effect on the political integrity, the economic security, or the health and welfare of the tribe.” See Montana v. United States, 450 U.S. 544, 547 (1981). 2 For instance, property law defines the area underneath one’s property as the “subsurface estate,” and it is possible for one owner to hold rights to the “surface estate,” while another holds rights to the “subsurface estate.” See Tyonek Native Corp. v. Cook Inlet Region, Inc., 853 F.2d 727 (9th Cir. 1988).

Tribal ecological knowledge 235 3 As of 2017, less than 1% of federally recognized tribes had obtained environmental regulatory primacy under one of the federal statutes recognizing it (Hoffmann 2017). 4 Immediately to the south of the Bears Ears, over 40,000 oil and gas wells have been drilled in the San Juan Basin north of Santa Fe, New Mexico, in what has become labeled one of the nation’s “energy sacrifice zones,” where ecological harms and damage to human health are largely “written off” in the name of energy development. Tom Ribe, “New Mexico: A sacrificial zone” (Mar. 22, 2015) www.santafenewmexican.com.

References Antiquities Act, 54 U.S.C. 320301 (2012). Bears Ears Coalition. n.d. “Statements of Tribal Support.” https://bearsearscoalition.org/ tribal-statements-of-support/. Bears Ears Inter-Tribal Coalition. 2015. “Proposal to President Barack Obama for the Creation of Bears Ears National Monument.” https://bearsearscoalition.org/wp-content/ uploads/2015/10/Bears-Ears-Inter-Tribal-Coalition-Proposal-10-15-15.pdf. Boyd, D.R. 2018. “Recognizing the Rights of Nature: Lofty Rhetoric or Legal Revolution?” Natural Resources & Environment 32, no. 4. Carpenter, K.A. 2009. “Interpretive Sovereignty: A Research Agenda.” American Indian Law Review 33: 111–152. Cherokee Nation v. Georgia, 30 U.S. 1, 2 (1831). Chevron USA, Inc. v. NRDC, Inc., 467 U.S. 837 (1984). Clean Air Act, 42 U.S.C. § 7401 (2012). Clean Water Act, 33 U.S.C. § 1377 (2012). Coggins, G.C., C.F. Wilkinson, J.D. Leshy and R.L. Fischman, 2014. Federal Public Land and Natural Resources Law. Saint Paul, MN: West Academic. Deloria Jr., V. (1972) 2003. God is Red: A Native View of Religion. Boulder, CO: Fulcrum Publishing. ELGA. 2016. “Oslo Manifesto for Ecological Law and Governance. From Environmental Law to Ecological Law: A Call for Re-Framing Law and Governance.” Ecological Law and Governance Association. www.elga.world/oslo-manifesto/. Endangered Species Act, 16 U.S.C. § 1533 (2012). Enote, J., H. Nordhaus and A. Huey. 2018. “What the Bears Ears Monument Means to a Native American.” National Geographic, Oct. 18, 2018. Herrera v. Wyoming, 139 S. Ct. 1686 (2019). Hoffmann, H.M. 2017. “Fracking the Sacred: Resolving the Tension Between Unconventional Oil and Gas Development and Tribal Cultural Resources.” Denver Law Review 94: 319–362. Hoffmann, H.M. 2019. “Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism.” Oregon Law Review 97: 353–395. Hoffmann, H.M. and M. Mills. 2020. A Third Way: Decolonizing the Laws of Cultural Protection. Cambridge: Cambridge University Press. Houck, O. 2019. “Noah’s Second Voyage: The Rights of Nature as Law.” Tulane Environmental Law Journal 31: 8–50. Johnson v. M’Intosh, 21 U.S. 543 (1823). Krakoff, S. 2018. “Public Lands, Conservation, and the Possibility of Justice.” Harvard Civil Rights-Civil Liberties Law Review 53: 213–258. Kronk Warner, E.A. 2016. “Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-Threatened Resources.” Nebraska Law Review 94: 916–962.

236

Hillary M. Hoffmann

LaDuke, W. 1994. “Traditional Ecological Knowledge and Environmental Futures.” Colorado Journal of International Environmental Law and Policy 5: 127–148. Lopez-Whiteskunk, R. 2016. “Former Head Councilwoman, Ute Mountain Ute Tribe.” Vimeo. Maynard, A. 1999. “Deconstructing a Water Project.” University of Denver Water Law Review 2: 227–243. Miller, R.J. 2016. “American Indian Nations and the International Law of Colonialism.” The Federal Lawyer January–February: 8–10. Navajo Tribe v. United States, 597 F.2d 1367, 1369 (Ct. Cl. 1979). Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Pavlik, S. 2014. The Navajo and the Animal People: Native American Traditional Ecological Knowledge and Ethnozoology. Boulder, CO: Fulcrum Publishing. Peterson, H.A. 2017. “A Review of The Navajo and the Animal People: Native American Traditional Ecological Knowledge and Ethnozoology.” IK: Other Ways of Knowing 3, no. 1: 74–76. Presidential Proclamation 9558, Establishment of the Bears Ears National Monument, 82 Fed. Reg. 1139, January 5, 2017. Presidential Proclamation, Establishment of the Bears Ears National Monument, December 28, 2016. https://obamawhitehouse.archives.gov/the-press-office/2016/12/28/ proclamation-establishment-bears-ears-national-monument. Sacred Land Film Project. 2019. “Bears Ears.” https://sacredland.org/bears-ears/. Tsosie, R. 1996. “Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge.” Vermont Law Review 21: 244–333. Wroth, L.K. 2019. “Introduction.” Vermont Law Review 43, no. 3: 415–424. Zuni Tribe of New Mexico v. United States, 12 Cl. Ct. 607, 610 (1987).

16 Practical pathways to ecological law Greenprints and a bioregional, regenerative governance approach for Australia Michelle Maloney Introduction The purpose of this book is to explore how we might transition from environmental to ecological law. In this chapter, I provide an overview of an initiative that aims—among other objectives—to build a movement of people working to understand, co-create and advocate for ecological law. The program is an Australian civil society initiative called “Greenprints.” The name “Greenprints” came from the observation that although we have “blueprints” to guide careful construction of engineering and building projects, we do not yet have “greenprints” that help guide industrialized societies to build regenerative economies and communities, within healthy ecological limits. The Greenprints program addresses this gap by providing a practical methodology— literally a step-by-step guide—to help communities understand planetary boundaries; downscale Earth systems science concepts for local relevance; understand the unique ecology and healthy limits of their local bioregion and community ecosystems; analyze past, present and possible future human economic activity within their bioregion (including land use, consumption, production, carbon and other emissions and so on); and develop bioregion-specific strategies for transitioning to new, regenerative economic systems that are supported by ecological law and ecological governance. In this chapter I provide a brief introduction to Greenprints and its connection to building ecological law. I first outline the key principles of ecological law and use them to frame a brief critique of the Australian legal system, and I use this critique to explain the basis of, and justification for creating, the Greenprints program. I then introduce the theoretical framework for Greenprints and the practical steps being taken within it to build community-driven action. Greenprints is currently in an action-research phase, where a coalition of community groups in a pilot project are working together to implement the new approach and methodology. Their work in turn is shaping the development of the program and assisting with the development of a handbook that will assist other communities to use the approach in the future. I conclude by suggesting that the Greenprints approach offers a practical way to engage people with the key concepts and practical implications of shifting to ecological law in Australia.

238

Michelle Maloney

Ecological law As stated in the Oslo Manifesto (ELGA 2016)—and discussed elsewhere in this book—ecological law represents a new paradigm for modern legal systems based on Earth-centered approaches to human governance with greater constraints on human activities that cause harm to the living world. As outlined by Garver, ecological laws should have several reinforcing features, such as: they must recognize the interconnectedness of all life and the interdependence of humans on Earth’s life systems; ecological limits must have primacy over social and economic regimes; ecological law should permeate an entire legal system, not just replace environmental law; it must be global but also distributed, using the principle of subsidiarity; it must support the reduction of human use of raw materials for consumption and production; and it must include greatly expanded research, monitoring and adaptiveness (Garver 2013). Ecological law has also been framed as consisting of three interconnected principles: ecocentrism, ecological primacy and ecological justice (Sbert 2020). Within this streamlined framework, ecological law has the objectives of constraining the economy within ecological limits, restoring and preserving ecological integrity and enabling an ecologically just society or mutually enhancing human-Earth relationship. As discussed later, the Greenprints program aims to support and implement all of these objectives and is working to achieve ecological law.

An ecological law critique of the Australian legal system Australia’s modern legal system, in simplistic terms, began in 1788 when the British Empire claimed the vast southern continent and imposed the English Common Law system across its new colony of “New South Wales.” From 1788 to 1901, the British colonial government successively created further colonies—Victoria, Tasmania, Queensland, South Australia and Western Australia—which were all subject to British law. In 1901, after several years of Constitutional Conventions were convened to discuss how to create one sovereign nation, the six colonies became the Founding States and agreed to cede some of their powers to create a new national government, the Commonwealth of Australia, within a federated system (McGrath 2003). Today, the structures of Federation continue to dictate how law is made and implemented in Australia and often present significant barriers to implementing innovative approaches to environmental governance (Bates 2019). The colonization of Australia saw the British legal system imposed across a continent that was already under the governance of hundreds of distinct, sovereign First Nations peoples. Now referred to as the “Aboriginal and Torres Strait Islander peoples of Australia,” these First Nations peoples are one of the oldest continuous cultures on Earth (Rasmussen et al. 2011), and at the time of colonization they had maintained a complex legal and governance system across the entire continent (Graham and Maloney 2019). Unlike many other peoples colonized by European imperial powers, the First Nations peoples of Australia were not invited

Practical pathways to ecological law 239 to engage in treaties with the British government, and to this day, treaties do not exist between the First Nations peoples and the British government, or later, any State or Australian governments. Thus, the sovereignty of the First Nations peoples of the continent now known as Australia was never ceded. The disruption caused by colonization and its long-lasting impacts on Aboriginal and Torres Strait Islander people cannot be understated. Neither can the difference between First Nations peoples’ laws and the imposed colonial laws of the British. As articulated by eminent First Nations Law Professor, Irene Watson: First Nations Peoples’ law is of the beginning: of the first songs, sung by the ancestors. When the first steps were walked across the ruwe, country was sung into creation. Law conceived as a way of living is difficult to write about and cannot simply be described or easily translated into a foreign language that is empty of the ideas that our law ways carry. Our law was not written in the way in which the West conceives of writing. Law was painted in ceremonial design and symbols were marked on boundary markers, identifying traditional owners and their ngaitjis. The differences between Nunga and nonAboriginal legal systems are so extensive that there is no basis upon which comparison can be drawn. . . . (Aboriginal) law is the essential basis of social conduct: respect, reciprocity and caring for country to name a few. These ethical principles convey the essential nature of the law. (Watson 2015, 22) (emphasis added) This clash of civilizations, and of legal systems, continues to play out today in the colonial landscape of Australian environmental and social governance. Addressing the long-term legacy, and future, of the colonial project on the Australian continent is a task that must be integrated into the development of ecological law within this country. Throughout this chapter, “Australian law” refers to the dominant, Western-style legal system that was imposed through colonization and has developed since Federation; “First Nations peoples’ laws” refers to the legal systems—past and present—of First Nations peoples living in the continent now known as Australia. Australia’s environmental governance Looking at the legacy of environmental governance since 1788, it is clear that the British, and then the Australian, legal systems have failed to care for the living world across the Australian continent. Today, Australian law is structured in such a way that future governance will continue to fail to protect the living world unless significant, systemic changes are made. Every “State of the Environment” report in Australia over the last two decades has pointed to deteriorating environmental indicators (CoA 2018). Australia has the shameful record of the highest rates of mammal extinctions in the world (Woinarski and Burbidge 2015). We have cleared more than half of all the continent’s original vegetation and are listed as one of the top ten worst offenders for

240

Michelle Maloney

deforestation in the world (Preece 2017). Australia is one of the highest per capita CO2 emitters in the world. On a per capita basis, Australia’s carbon footprint, including exports, surpasses China by a factor of nine, the US by a factor of four and India by a factor of 37 (Australian Conservation Foundation 2019). Australia’s ongoing nationally supported and subsidized policies for coal and minerals extraction have created a “plutocracy” within Australian politics that makes the rights of large corporate interests paramount in any implementation of environmental protection laws. Reflecting on the core elements of ecological law as briefly summarized previously, I suggest in the following brief overview that Australia’s legal and broader governance system fails to meet the basic criteria of ecological law for the following reasons: •

•

•

•

Australia’s legal system is fundamentally human-centered and does not recognize the interconnectedness of all life and the interdependence of humans on Earth’s life systems. While many environmental laws have been passed since the 1970s, they have been “tacked onto” a private propertybased, pro-growth, human-centered legal system, and ecological law does not permeate the entire legal system. Australia’s legal system ignores ecological limits. Our legal, economic and political systems are focused on supporting economic and material growth and do not place ecological limits as primary, over social and economic regimes. Ecological limits are not explicitly recognized in Australian policy frameworks or environmental laws. From colonial times, when expansion and extraction were fundamental goals of imperialism, to the present day, where neoliberal ideologies dominate our policy space and support the commodification of the living world, Australia’s environmental governance system has continually prioritized the growth paradigm. Further, Australia has no governance rules or pathways outlining how we can live within our limits—we have no road map or way to do this within the public policy or law sphere. This is one of the important gaps that Greenprints is aiming to address. Australia’s legal system does not use the principle of subsidiarity to ensure that local communities—or even local governments—have the critical decision-making role in the future of their local ecosystems. Control over natural resources lies predominantly with state governments, with some environmental protection powers lying with the federal government and local councils (Bates 2019). Laws relating to resource extraction, environmental protection and protected areas continue to be managed in a “top down” manner in Australia. Australia’s laws do not encourage the reduction of human use of raw materials for consumption and production. While efforts have been made since the late 1980s and early 1990s to support “sustainable development,” the focus has continued to be on “development,” and as a whole the Australian political and economic system is driven by an insatiable demand

Practical pathways to ecological law 241

•

for economic growth and high levels of consumption, and the legal system supports this. Indeed, the model of sustainability that emerged from the 1992 Rio Summit, and which influenced Australia’s sustainability discourse and action, was profoundly flawed. After the 1992 Rio Summit, the concept of “ecologically sustainable development” (ESD) gained traction in Australian policy and legal frameworks, and was reflected in the “Intergovernmental Agreement on the Environment” (IGAE) that was created to improve environmental cooperation between all levels of government in the Australian federal system (CoA 1992). However, this policy framework has ultimately failed because ESD was implemented within a “business as usual” economic growth paradigm. ESD proposed that the “three pillars” of sustainability—ecology, society and economy—were equal, and needed equal attention. Within a pro-growth cultural, legal and economic system, the use of ESD was not—and is not—enough to stop the relentless destruction of the natural world. Ecology, society and economy are not equal—we must fit the human economic system and broader society into the limits of our ecological systems. Instead of ESD, we need to aim for a focus on “living within our ecological limits” or living within the productive capacity of the living world. A “colonial mindset” continues in “mainstream” Australian culture, law and economics, and it directly affects environmental governance. In Australia, much could be achieved if we had government leadership and public discourse that directly opened up inclusive and compassionate discussions about the impacts of colonization on First Nations peoples, and ways forward into the future together. Much could also be achieved if we explicitly encouraged conversations about what our human governance systems would look like if we embraced the biophysical realities of Australia and moved away from the colonial mentality that continues to impose European-influenced agricultural, extractivist and development practices across the continent. This colonial mentality created, and is supported by, mainstream Australian culture, economics and law. Building ecological law in Australia will require Australians to accept and embrace the remarkable and unique ecological system within which we live, work and play.

The Greenprints approach The Greenprints approach is being designed as a direct response to the urgent need for Australia to transition away from its anthropocentric, top-down, pro-growth governance system and to build ecological law and governance approaches that are uniquely suitable for the Australian continent. Greenprints is both a process (a step-by-step guide) and an output (a series of scenarios and plans). It provides a methodology that can be tailored to any biophysical area in Australia, with a focus on bioregions and/or sub-bioregions as the most appropriate scale. Greenprints is also tailored to the unique cultures, communities and peoples who live in the relevant biophysical area.

242

Michelle Maloney

Greenprints does not aim to “reinvent the wheel,” but rather aims to offer a pathway through the maze of existing sustainability approaches, so that appropriate tools can be selected by communities, with the additional element of embedding these approaches within a local, bounded “space” such as a bioregion. This “pathway” includes encouraging participants to review and, where appropriate, adopt elements of a range of approaches including but not limited to: the Transition Town movement, the Ecological Footprint method, “One Planet Living” methodologies, industrial ecology, planetary boundaries and Doughnut Economics, and engaging with the practical approaches within the new economy and localization movement. Theoretical framework—Earth jurisprudence and ecological limits The inspiration for Greenprints is the theory of Earth jurisprudence, which is now incorporated into theories of ecological law by many scholars (Garver 2013; Sbert 2020), and is a foundation for much of the work carried out by the Australian Earth Law Alliance (AELA), the Ecological Law and Governance Association (ELGA) and other organizations around the world. Earth jurisprudence, a term coined by cultural historian and “Earth scholar” Thomas Berry, is a theory of Earth-centered law and governance. Berry argues that the underpinning governance and institutional structures of contemporary industrial societies—law, economics, education, religion—are human-centered and have fostered the belief that the natural world is merely a collection of objects for human use (Berry 1999). In contrast, Earth jurisprudence suggests a radical rethinking of humanity’s place in the world, to acknowledge the history and origins of the universe as a guide and inspiration to humanity and to see our place as one of many interconnected members of the Earth community (Swimme and Berry 1992). By “Earth community” Berry refers to all human and “other than human” life forms and components of the planet—animals, plants, rivers, mountains, rocks, the atmosphere: our entire Earth (Berry 1999). He suggests that “our great work” is to transform human governance systems to create a harmonious and nurturing presence on the Earth (Berry 1999). From an Earth jurisprudence perspective, the reasons for humanity’s failure to transition to societal rules that help us live within our ecological limits are complex, but three key barriers stand out. The first barrier is the powerful combination of two belief systems in industrial societies: anthropocentrism, the idea that humans are the center of all things and are superior to or more important than all other elements of life, and the belief in the necessity of unlimited economic growth. The idea that unlimited growth is critical for the health of national economies developed during the Industrial Revolution and continues to dominate modern political, economic and cultural life (Alexander 2011). The combination of these two worldviews has been a significant barrier to the mind shift necessary to accept and act on the reality of our ecological limits (Berry 1999). The second barrier to human societies living within their limits is the unequal power structures created and perpetuated by the vested interests who control

Practical pathways to ecological law 243 much of the Earth community, or the planet’s “natural resources,” and currently prevent those concerned with the health of the Earth from transforming our societies. There are now many claims that modern Western societies are plutocracies rather than democracies (Burdon 2014; Alexander 2014; Preston 2014) and are governed by the interests of wealthy individuals and corporations who wield disproportionate power in development of State-sanctioned policies. The lengths to which private interests have gone to protect their financial interests in industries as diverse as tobacco and fossil fuels have now been carefully documented (Oreskes and Conway 2010). An increasing number of investigations also show the interaction between powerful private interests and their control over the public policy agenda (Sachs 2011). Such power structures mean that the vast majority of the world’s population, including civil society and other groups who want to live sustainably and within their ecological limits, are excluded from key decisionmaking roles. This “pathology” of a society dominated by vested interests and disconnected from its physical realities is a powerful and all-pervading reason why we do not live within our limits. Recognizing these power structures, naming them and directly addressing them are crucial. The third barrier is that industrialized nations have functioned for hundreds of years, and particularly since the Industrial Revolution, without any concept of ecological limits, and this means that living within limits is new and challenging for our governance and legal systems. Our existing governance systems—our institutions, legal and regulatory systems, environmental laws and “environmental management tools”—are all built to support, or only gently mitigate, humancentered growth, and are not yet sufficiently sophisticated or in tune with the Earth community to help us live within our limits. Strong protections of national sovereignty and private property rights have further entrenched this barrier. Greenprints addresses all of these barriers by aiming to make it easier for people to: engage in ecocentric thinking and actions; understand and connect with the wider Earth community; appreciate ecological limits in their local ecosystems, bioregions and broader Earth system; and ultimately work to create the culture, ethic and societal rules that will build regenerative, ecological societies. The approach is designed to offer hope and positive alternative ways forward; both are critical elements when tackling the first and second barriers outlined earlier. Greenprints as a practical pathway As a practical methodology, Greenprints provides a step-by-step guide to help communities and connected stakeholders understand their local ecological systems and transition their economies so they can live within ecological limits. These steps are outlined later. Given that the current political and economic priorities of Australia’s governments continue to be “growth and jobs,” AELA does not have any expectations that the Greenprints approach will be taken up by state or federal governments in the immediate future. For now, the Greenprints Handbook being developed as the primary source of information about the Greenprints approach is aimed at civil

244

Michelle Maloney

society—individuals, community groups and organizations—as well as enlightened local governments. Our aim is that these groups will use the Greenprints approach as a starting point and guide for moving their town, city and bioregion into a zero-carbon, biodiverse place for human societies and the wider Earth community. However, once the Greenprints Handbook is completed, we will—to demonstrate optimistically that an alternative system is possible—present it and advocate for it to governments at all levels. The journey toward systemic change will take years, and Greenprints may be redesigned as we go, but AELA is committed to the work and believe that we can in fact create governance systems that enable humans to build a more harmonious relationship with the wider Earth community and thrive within the productive capacity of the nonhuman world. A quote regarding the creation of a “right relationship” with the Earth economy is also relevant to the development of ecological law and the optimistic approach of Greenprints: This cannot be a plan only for experts and policy makers. People from all levels of society must be involved. Grounding and clarification about the need to cherish and protect the commonwealth will take hold through experiencing nature and after earnest conversations among people who care for each other, and not merely discussions in environmental governance think tanks. Designing a rational new approach to economics will only work if people with diverse life experiences participate in dialogue about what they aspire to in their daily lives in a whole earth community. (Brown and Garver 2009, 141) Thus, community action and ownership of the process is at the heart of Greenprints. In 2019, after two years developing the Greenprints methodology, including the first stage of an online mapping tool, AELA began working with a group of community members from the Sunshine Coast in the State of Queensland to develop the first Greenprints project. The community participants (“the Greenprints Sunshine Coast Team,” or “GPSC Team”) all reside in the northern sub-regions of the South East Queensland Bioregion. The GPSC Team represent eight place-based organizations committed to caring for the local environment. The AELA Team and GPSC Team meet on a regular basis, check in with the Greenprints scientific and First Nations advisory groups and have been developing several streams of work together. This work includes conducting multidisciplinary research, hosting events for local communities, developing a “Greenprints Workbook” for the Sunshine Coast and developing a “Greenprints Handbook” to help guide other communities to explore and work through the steps in the Greenprints approach. The Greenprints approach summarized In simplified terms, the Greenprints approach currently includes the following:

Practical pathways to ecological law 245 Step 1—thinking differently—a focus on ecocentrism and ecological limits The first “step” in the Greenprints approach is to change the way we think about our place in the world. If we accept that humans are simply one part of the wider, interconnected community of life on this planet, and we accept that all of life and life-supporting systems have the intrinsic right to exist, thrive and evolve, then our expectations of how we should live change dramatically. And our starting place for transitioning to a healthy future is in fact the Earth itself (not us). In this first stage of the Greenprints process, participants explore ecocentric theories and governance approaches through a range of interactive exercises, peer-to-peer learning and workshops and activities featuring experts and special guests. It includes engaging with local First Nations peoples and, wherever possible, working together in a culturally appropriate way that ensures First Nations peoples’ perspectives and knowledge are respected and they themselves are leaders, advisors and participants in the longer-term project, should they wish. The first stage of the process also introduces the concepts of planetary boundaries, ecological limits and a range of economic theories and approaches that can inform the transition to an economic system that can “fit” within ecological limits, including Steady State and Doughnut Economics (Raworth 2017). Greenprints differs fundamentally from many other planning processes. In Australia and other industrialized nations, planning processes typically focus on how to achieve predetermined human objectives while maximizing financial gain and minimizing environmental and social “harm.” This approach is built on the flawed foundations of a cultural worldview that neither respects nor understands the inherent limits or long-term regenerative capacity of the living world. In contrast, the whole approach of Greenprints is embedded within a framework of respect for understanding and living within limits. As noted previously, it has been argued that “ecologically sustainable development” as a concept and practical model, has largely failed (Klein 2014). One of the key reasons it failed is because governments and corporations embraced the idea that ESD was all about “balancing” the three pillars of human society— environment, society and economy. Unfortunately, our existing culture and governance systems ensured that we focused predominantly on the modern notion of an “economy” (especially that it must grow perpetually), and the environment and society often lost out. ESD was also treated largely as a process of continual improvement—it had no end game, no outer limits, no parameters within which to achieve success. In contrast, Greenprints is based on the notion of “nested” sustainability—that is, that we must “fit” human societies, and human economies, into the regenerative capacity of the living world. This may appear blatantly obvious to those of us who have been working on sustainability issues for a very long time. But again, at present our governance systems are not built this way—narrowly defined, unjust economic interests are valued above all else, while the environment and social justice deteriorate.

246

Michelle Maloney

Step 2—defining the boundaries of our ecological limits Greenprints is based on the idea that if we are to transition industrial societies away from their current abuse and overconsumption of the natural world, we need to start by focusing on the ecological integrity and resilience of the natural world. But what “scale” or “unit of analysis” is the best way to start? What are these ecological limits within which we need to work? A useful “starting point” for mapping out what Earth-centered governance can look like, is a bioregion. A bioregion is an area of land or sea defined by common patterns of natural characteristics and environmental processes (such as geology, landform patterns, climate and ecological features such as plant and animal communities). A bioregion’s borders are defined by natural boundaries such as mountain ranges, watersheds/catchments and soil types (rather than the political boundaries of many maps). Each bioregion has a unique collection of ecological communities as well as different patterns of land use and threats to biodiversity (NSW Government 2016). A bioregion is smaller than an ecoregion but larger than an ecosystem or catchment area. Australia has a widely accepted classification system called the Interim Biogeographic Regionalisation for Australia, version 7 (IBRA7), which has created 89 bioregions. While most conservation and land management groups in Australia use catchments (or watersheds) rather than bioregions in conservation projects, catchments fit within bioregions, and the Greenprints scientific advisory group confirmed that bioregions and sub-bioregions are the best unit of analysis for the aims of the project. A distinction should be made at this point between bioregions (defined previously) and “bioregionalism.” Bioregionalism is a body of thought that evolved to “reconnect socially just human cultures in a sustainable manner to the regionscale ecosystems in which they are irrevocably embedded” (Aberley 1999). It has a rich, vast literature and, despite its critics, has created an enduring legacy. Greenprints draws on some of the powerful ideas from the bioregionalism movement, but unlike the movement itself, does not place a priority on redrawing our current political boundaries to comply with bioregional boundaries. Greenprints proposes that bioregions offer the best way for us to create long-term, understandable “ecological limits” within which we can redesign our governance systems. The benefits of a bioregional approach are threefold: by using bioregional ecological health as a starting point for human governance, we can: (1) implement a key aspect of Earth jurisprudence, that is, we can develop our understanding of place and connection with the unique qualities of our local Earth community; (2) map out what nature needs to thrive within specific, definable boundaries (in contrast to broader definitions of sustainable development that seem to relate more to “continual improvement” than living within ecological limits) and (3) redesign human culture and society so that economic, social and political systems all work toward the same, life-sustaining ecological goals. So, for the remaining “steps” in the Greenprints method, the work carried out is focused within a bioregion. Local community members are invited to explore

Practical pathways to ecological law 247 what ecological integrity and resilience look like within their local area, subregion or bioregion. While their own bioregion is the primary unit of analysis, or area of focus, Greenprints participants are also invited to begin thinking about the interconnections and interdependence between their bioregion and other bioregions—both neighboring bioregions and those further afield. Step 3—building deep understanding of the unique characteristics, biophysical properties and resources of the bioregion and/or sub-bioregions The third stage of the Greenprints process focuses on developing a deep understanding of the geology, soils, topography, biodiversity, climate, water cycles and local seasons of the local bioregion and sub-regions. It includes a review of existing scientific literature, First Nations peoples’ knowledge (where it is appropriate to access and learn from such knowledge and only where First Nations peoples are collaborators in the knowledge-sharing process) and the knowledge of local organizations actively involved in ecological restoration, care and protection. The purpose is to enable people to get to know their local ecosystems—and address the disconnection many modern people have from the natural environment upon which they depend. This stage sees local participants working with local and visiting experts, and hosting collaborative events such as workshops and webinars, to bring an ever-increasing number of people into the process. It also includes an in-depth review of present and predicted future impacts of climate change on the bioregion. The GPSC Team is currently working with AELA to plan a multi-day bioregional knowledge festival in early 2021, so that people can be invited to join a collective knowledge-sharing process—and celebration of the living world—in their bioregion. The whole process will further develop the continually evolving Greenprints Handbook. Step 4—understanding human impacts in the bioregion This step requires past and present human economic and settlement activities to be understood based on an objective assessment of the current ecological condition and current patterns of human activities in the bioregion. It includes reviewing First Nations’ peoples’ relationship and interaction with the bioregion, the colonial settlement history of the bioregion and current economic activities undertaken in the bioregion. The impacts of past and current activities are analyzed, including land use changes since colonization and the various impacts on the bioregion’s ecological health. The Greenprints mapping tool is particularly useful in this stage, as it includes the layering of a number of datasets that show, in some detail, how the bioregion has been and is being used and impacted by human activities. This stage includes a full analysis of economic frameworks and activities relevant to the human communities of the bioregion. It can also facilitate an investigation into the interconnections between participants’ “home bioregion” and neighboring bioregions that may be impacted by their activities.

248

Michelle Maloney

Step 5—reviewing the ecological limits of the bioregion within interconnected ecoregions and planetary boundaries This step involves a detailed analysis of the current and future ecological limits within which human activities must operate. This includes using the “IPATe” framework where “Impact” = Population, Affluence and Technology, with decisions made within an ethical framework (Brown and Garver 2009, 76–84). Greenprints has yet to refine the details of how a local community can research and understand how their activities inside their own bioregion impact on others— and how activities from other bioregions and jurisdictions impact on their local bioregion. However a range of tools and methods are being explored at various scales for determining a range of impacts, including: (i) how local actions affect the local bioregion, (ii) how local actions affect neighboring bioregions and (iii) how local actions affect places further away through direct relationships such as trade and through indirect relationships such as contributing to the use and pollution of the global commons, including climate emissions. Tools that have been explored so far include: the Ecological Footprint Method, which can assist in the calculation of local consumption and includes the impacts of importing goods and services from other regions (Wackernagel and Rees 1996; Wackernagel and Beyers 2019); approaches linked to downscaling the concept of planetary boundaries (Häyhä et al. 2016, 2018) and approaches used in operationalizing the concept of Doughnut Economics (Raworth 2017). Step 6—scenario planning The Greenprints approach then encourages the development of a number of possible “scenarios” for the future of a particular bioregion. “Business as Usual” examines what the impacts would be of continuing to carry out existing growthoriented economic activities, with details specific to the bioregion in question. Such activities might include destructive industrial-scale agricultural practices, mining, water consumption, logging, rapidly growing populations and residential and urban developments and other activities. Other scenarios will then be developed to show how economic activities could be transitioned to ensure human activities fit within ecological limits. The goal is to examine what could realistically be done in a region, across various time frames, that would ensure living systems regenerate and continue to support human societies indefinitely. The scenarios, along with land use maps generated with the Greenprints mapping tool, will be powerful techniques for “showing” what Earth-centered governance options exist. The ultimate decisions about which “scenario” to aim for will be made by the communities involved. Step 7—planning for the implementation of optimal scenario/s Once optimal scenarios are developed, specific action plans need to be developed to explore advantages and disadvantages of optimal future approaches. These

Practical pathways to ecological law 249 action plans will include funding proposals, the types of law reform needed and other reform and transition plans. An important part of this stage of the Greenprints approach is reviewing and reimagining the legal and governance rules that govern the bioregion. As noted earlier in this chapter, Australia’s environmental governance system is “top down,” and most resource management takes place at the state or, less often, federal level. By working through the Greenprints approach and developing place-specific, bioregionally suitable law and governance recommendations, Greenprints will be able to help communities advocate for radical law reform over time. While there will still be a range of legal and economic issues that will need to be governed nationally and regionally, the Greenprints approach will equip people with a deeper understanding of how to advocate for laws that enable local control over local land use, local biodiversity protection, local planning laws and local community economics. Instead of a predominantly top-down system, Greenprints will enable people to advocate for the implementation of principles of subsidiarity and community-based ecological governance in order to more effectively protect and manage ecosystems and bioregions than distant national and state “standardized” laws (Ostrom 1990). Step 8—building community resources and capacity are at the heart of Greenprints The development of a Greenprints approach in a sub-region or bioregion means that community members and experts from a variety of fields (including Indigenous knowledge, science, history, environmental management and law and so on) are engaged and brought into the process from the beginning—and throughout— the process. The final stage harnesses the results of this “building” process and develops an advocacy plan and societal reform process for making the changes necessary to implement optimal scenarios and change how people live, work and play in the bioregion.

Conclusion Greenprints provides a practical approach to building support for the change necessary to create ecological law in Australia. Built on the foundations of respecting, understanding and working within the regenerative capacity of the living world, it offers a way for local community members to understand and articulate to others how to shift from human- to Earth-centered governance, how we can live within our ecological limits and how the legal system must be transformed to support subsidiarity and local ecological custodianship. Greenprints is a flexible experiment—in thinking, acting and engaging others— and it offers an optimistic pathway to a more sustainable future. It constitutes what socialist Erik Olin Wright terms a “real utopia,” a vision that is achievable but only through much theorizing and social experimentation (2010).

250

Michelle Maloney

References Aberley, D. 1999. “Interpreting Bioregionalism: A Story from Many Voices.” In Bioregionalism, edited by M. McGinnis. London: Routledge. Alexander, S. 2011. “The Voluntary Simplicity Movement: Reimagining the Good Life beyond Consumer Culture.” The International Journal of Environmental, Cultural, Economic and Social Sustainability 7, no. 3: 133–150. Alexander, S. 2014. “Wild Law from Below.” In Wild Law in Practice, edited by M. Maloney and P. Burdon. London: Routledge Press. Australian Conservation Foundation. 2019. “Evaluating the Significance of Australia’s Global Fossil Fuel Carbon Footprint.” www.acf.org.au/evaluating_the_significance_of_ australias_global_fossil_fuel_carbon_footprint. Bates, G. 2019. Environmental law in Australia, 10th ed. Sydney: Butterworths. Berry, T. 1999. The Great Work: Our Way into the Future. New York: Bell Tower. Brown, P.G. and G. Garver. 2009. Right Relationship: Building a Whole Earth Economy. San Francisco: Berrett-Koehler. Burdon, P. 2014. “Earth Jurisprudence and the Project of Earth Democracy.” In Wild Law in Practice, edited by M. Maloney and P. Burdon. London: Routledge. Commonwealth of Australia. 1992. “Inter-governmental Agreement on the Environment.” www.environment.gov.au/about-us/esd/publications/intergovernmental-agreement. Commonwealth of Australia. 2018. “State of the Environment Reports 1996–2016.” https://soe.environment.gov.au/download/reports. ELGA. 2016. Ecological Law and Governance Association. “Oslo Manifesto.” https:// elgaworld.org/oslo-manifesto. Garver, G. 2013. “The Rule of Ecological Law: The Legal Complement to Degrowth Economics.” Sustainability 5, no. 1: 316–337. https://doi.org/10.3390/su5010316. Graham, M. and M. Maloney. 2019. “‘Caring for Country and Rights of Nature: A Conversation between Earth Jurisprudence and Aboriginal Law and Ethics.” In Sustainability and the Rights of Nature in Practice, edited by C. La Follette and C. Maser. Boca Raton, FL: CRC Press. Häyhä, T., S.E. Cornell, H. Hoff, P. Lucas and D. van Vuuren. 2018. “Operationalizing the Concept of a Safe Operating Space at the EU Level—First Steps and Explorations.” Stockholm Resilience Centre Technical Report, prepared in collaboration with Stockholm Environment Institute (SEI) and PBL Netherlands Environmental Assessment Agency. Stockholm Resilience Centre, Stockholm University, Sweden. Häyhä, T., P.L. Lucas, D.P. van Vuuren, S.E. Cornell and H. Hoff. 2016. “From Planetary Boundaries to National Fair Shares of the Global Safe Operating Space—How Can the Scales be Bridged?” Global Environmental Change 40: 60–72. Klein, N. 2014. This Changes Everything, New York: Simon and Schuster. McGrath, F. 2003. The Framers of the Australian Constitution: Their Intentions. Brightonle-Sands, NSW: Frank R. McGrath. NSW Government. 2016. “What is a Bioregion?” www.environment.nsw.gov.au/bioregions/ BioregionsExplained.htm. Oreskes, N. and M. Conway. 2010. Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming. New York: Bloomsbury Press. Ostrom, E. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York: Cambridge University Press. Preece, N. 2017. “Australia is a Global Top-Ten Deforester—and Queensland is Leading the Way.” The Conversation, November 2017. https://theconversation.com/australiais-a-global-top-ten-deforester-and-queensland-is-leading-the-way-87259.

Practical pathways to ecological law 251 Preston, B. 2014. “Internalising Ecocentrism in Environmental Law.” In Wild Law in Practice, edited by M. Maloney and P. Burdon. London: Routledge. Rasmussen, M., et al. 2011. “An Aboriginal Australian Genome Reveals Separate Human Dispersals into Asia.” Science 334, no. 6052 (October 7): 94–98. Raworth, K. 2017. Doughnut Economics: Seven Ways to Think Like a 21st Century Economist. White River Junction, VT: Chelsea Green Publishing. Sachs, J.D. 2011. The Price of Civilisation: Reawakening American Virtue and Prosperity. London: Random House. Sbert, C. 2020. The Lens of Ecological Law: A Look at Mining. Cheltenham: Edward Elgar. Swimme, B. and T. Berry.1992. The Universe Story: From the Primordial Flaring Forth to the Ecozoic Era—A Celebration of the Unfolding of the Cosmos. New York: Harper Collins. Wackernagel, M. and B. Beyers. 2019. Ecological Footprint: Managing Our Biocapacity Budget. Gabriola Island, BC: New Society Publishers. Wackernagel, M. and W.E. Rees. 1996. Our Ecological Footprint: Reducing Human Impact on the Earth. Gabriola Island, BC: New Society Publishers. Watson, I. 2015. Aboriginal Peoples, Colonialism and International Law: Raw Law. London: Routledge. Woinarski, J and P. Burbidge et al. 2015. “Ongoing Unravelling of a Continental Fauna: Decline and Extinction of Australian Mammals since European Settlement.” Proceedings of the National Academy of the Sciences (PNAS) 112, no. 15 (April 14, 2015): 4531–4540. Wright, E.O. 2010. Envisioning Real Utopias. London: Verso.

Index

academic disciplines iv, 7, 61 academic freedom 203 academic paradigm 136 academy and academics 104, 105, 212, 223; legal 5 accountability 148, 158, 160, 179, 190, 217; of government 147, 148, 149, 156, 157, 158, 159, 227; of judges 151, 152; political 186; for slavery 50 accumulation 4, 85, 137, 143, 190; of “cheap nature” 213, 215; economic 186 adaptation 19, 48, 83, 85, 215, 216 adaptive process(es) and adaptiveness 80, 111 adjudication 5, 90, 95, 96, 121, 124, 126, 127–128, 129, 130, 131, 159, 205 affluence 212, 248 Africa 4; conservation programs in 165, 166; challenges in 172; forests 168–174 African eco-philosophy 4, 164–174 African Traditional Religion (ATR) 167, 168 African traditional thought and cultural practices: awareness of perverse aspects of 169; conception of the universe 166; and conservation tools 165; as environmental 164, 165; nature spirits 166; sacred places 166, 169; sacrifices 167; taboos 166, 167–168; totems 166; as way to promote implementation of Earth jurisprudence 5, 165 agency(ies) or agents 79, 106, 212; government 25, 27, 141, 147, 151, 153, 158, 196, 197, 198, 223, 224, 227, 231, 232, 233, 234; human 188; intelligence 25, 28, 31; nonhuman 81, 122; police and security 25, 26, 27, 28; Indigenous political 112; regulatory 193; student 217 alterity 16 altruism 50 Amazonia xii, 120, 127

Amazonian manatee 123 Amazonian rivers 123 American Bar Association Model Rules of Professional Conduct 196 American Bar Association Standards for Approval of Law Schools 203 Andean condor 123 Andean mountains 123 animation(s) 5, 179, 180, 181, 184, 185, 187–190 animism 106 Anishinaabe peoples 112 Anthropocene xiv, 11, 19, 78, 180, 188; challenges in 4, 100, 148, 160, 181, 187, 204; characteristics of 84; ecological law in 61–71; governance structures for 104; legal education in 209–218; protection of ecosystems in 17; significance of 3 anthropocentrism: in contemporary law xv, 1, 2, 3, 14, 18, 76, 79, 80, 91, 92, 95, 107, 113, 136, 159, 195, 213, 241; compared to ecocentrism 15, 16, 19, 98; and ecological justice 137; and ecosystem services 96–97; and growthinsistence 205; and rights of nature 90, 96; and rights-based frameworks 90; Western xiv, 170; worldviews and narratives 93, 95, 212, 242 anthropology 4, 108 Antiquities Act 230, 231, 233, 234 areas beyond national jurisdiction (ABNJ) 200, 201, 204, 205 Arendt, H. 46, 53 asteroid(s): characteristics of 42; diverting from Earth 52; harvesting resources or mining of 40, 41, 42; as lifeless 45, 49, 52; near-Earth 41, 42; rocky 48; water 42, 52 astronauts 46

Index atiku 109, 113 attachment to place 53, 98, 99 Australia: Aboriginal and Torres Strait Islander peoples of 238, 239; carbon footprint 240; and coal 25, 31, 210, 240; colonial mindset in 241; colonization of 238, 239, 241, 247; deforestation in 239–240; environmental and social governance 239; federal system 241; First Nations peoples of (see First Nation(s)); Intergovernmental Agreement on the Environment 241; Interim Biogeographic Regionalisation 246; law 237, 238–241; legal system 237; mammal extinctions in 239; planning processes in 245; political and economic priorities 243; State of the Environment reports 239; subsidies for extraction in 240; sustainability discourse 241 Australian Earth Law Alliance (AELA) iii, xii, 242, 243, 244, 247 Australian Federal Police (AFP) 25, 31 Australian Security Intelligence Organization (ASIO) 25 ayahuasca 114 Bacon, F. 45 Bears Ears: Commission 232, 233; InterTribal Coalition 228; model 234; National Monument 231, 232, 233; region 228–233 benevolence 2, 94 Berry, T. 46, 51, 54, 104, 203, 242 Bible 15 Big Bang 54 Big Dipper 53 biodiversity: and African forests 171; change 62; crisis 11; decline or loss of 7, 11, 48, 65, 69, 70, 71, 77, 90, 210; effects on 18, 66, 84, 210; enhancement of 211; and Indigenous lands and communities 110, 174; marine 200, 201; preservation of 109, 249; reserves of 168; and resilience 65, 69; and sacred groves 168; threats to 246; understanding 247 bioregion(s) 241–249; biodiverse 244; bioregionalism distinguished 246; definition 242, 246; ecological limits of 248; governance (see governance); planning 248–249; South East Queensland 244; -specific strategies 237; understanding of 247; zero-carbon 244

253

bioregionalism 183, 186, 189, 246 biotic community 106, 112 Black Hills 53 Blaser, M. 113 blueprints 6, 237 Bolivia: Rights of Mother Earth law 16, 140; rights of nature 91, 92 Bosselmann, K. 1, 137, 148, 149, 159, 203 bottom-up approach(es) 81, 217 boundary object(s) 76, 77 Boyd, D. 203 British colonial government 238 British Empire 238 British legal system 238 Brown, P. 137 buen vivir 15, 92, 122 Burdon, P.D. 203 bureaucratization 13, 79, 111 Bureau of Land Management (BLM) 230, 231 Canada 1, 2, 197; common law 157; Supreme Court 113, 157; targeting of environmentalists in 25, 26, 27–30, 36; and trusteeship theory 148, 157–160; wildlife laws 140–141 Canadian Impact Assessment Act 141 Canadian Security Intelligence Service (CSIS) 25, 28, 29 capitalism 34, 51, 105, 142, 169, 180, 182, 183, 185, 186, 187, 188, 211, 214, 216 Capitalocene 78, 213 carbon 6, 154; dioxide 68, 69, 164, 168, 171, 210; emissions 210, 237; footprint 240; -free society 14; lock-in 210; regulation service 70; sequestration 84; taxes 183, 187 caribou 109, 111, 113 Cartesian view 15 catchments 168, 246 causation 79 celestial bodies 2, 40, 41, 42, 43, 45, 49, 51, 52, 54 celestial perspective 46 Central African peoples 170, 171 ceremony and ceremonies 109, 229 certainty 83; attachment to 83; in law 83; scientific, full 67; scientific, lack of 14, 65; see also uncertainty change: behavioral 12; Earth system 70, 71; ecological 3, 68, 69, 97; environmental 3, 66, 83, 209, 213, 215; global ; humandriven 62; land use 247; legal 184, 216, 217; planetary 62, 63, 68, 69, 70;

254

Index

systemic 239, 244; temperature 46, 68; see also climate change Chipewyan peoples 109 Christianity 15, 99, 225 Civil Code of Quebec 141 civil society 6, 25, 156, 237, 243 Clean Air Act 223, 227 Clean Water Act 194, 223, 227 climate: adaptation 199; change (see climate change); conditions 216; crisis 185, 209; disruption 90; emergency 139, 209; emissions 248; as environmental process 246, 247; global 5; -governance actors 217; justice 217; mitigation 84; movement 6; science 214; scientists 212, 215; solutions 211; -striker generation 215; system 62, 63, 65, 67, 68, 83 climate change: agency 212; anthropogenic 76, 209; arena 114; causes of 213; combatting 174; concern over 77; crisis 11; as ecological catastrophe 164; exacerbation of 214; as existential threat 7; and food, water and energy insecurity 218; and forests 168, 171; impacts and consequences of 5, 164, 199, 201, 210, 212, 217, 247; legislation 13, 205, 217; mitigation 211; rate of 68; reality of 216; as reason to reduce production 188; responses to 183; and scientific discourse 211–212; takeoff of 187; threats due to 199; time sensitivity of 217; as warning sign 69, 71; see also Intergovernmental Panel on Climate Change coastal areas or zones 197, 199, 200, 204 coastal states 197, 199 coastal waters 197 Coastal Zone Management Act 197–200, 204 Cold War 25, 27, 30 collaborative management 6, 232, 233, 234 Colombia 1, 91, 120, 121, 125, 127 Colombian Constitutional Court 121 colonialism and colonial systems 4, 80, 98, 105, 113, 165, 180, 188, 212, 227, 238, 239, 240, 241, 247 colonization 79, 179, 213, 224–225, 226, 238, 239, 241, 247 colonizer laws 233 co-management approaches 165, 230 command-and-control regulation 13, 193, 196 commercial activities and interests 31, 172 commercialization of space 40, 41, 42, 50 common home 11 common-pool resources 99

commons: celestial 2; definition of 154; Earth or global 148, 154, 155, 156, 159, 248; and markets 148 communion 106, 112, 114 communism 27, 30 community or communities 6, 94, 111, 114, 153, 241; African 167, 169, 172; animal or plant 106, 246; -based development 183; -driven action 237; Earth 54, 107, 136, 137, 139, 142, 172, 198, 242, 243, 244, 246; ecological 120, 246; engagement 81, 85, 99, 199; forest 7; human 16, 247; Ika 121, 125; Indigenous 112, 120, 164, 166, 190; intelligence 33; intentional 183; international 147; interests of 158; interpretive 36; of knowledge 77; law enforcement 29; of life 90, 96, 97, 98, 245; local 99, 129, 164, 165, 168, 174, 184, 201, 202, 240, 244, 246, 248, 249; marginalized 84; moral 7; participation 199; peasant 124; of practice 77; regenerative 237; resources and capacity 249; rural 91; scholars 104; scientific 210; socio-physical 189; Third World 189; tribal 231; see also First Nation(s) Community Environmental Legal Defense Fund (CELDF) 91 companies 2, 12, 27, 29, 31, 32, 33, 34, 41, 42, 43, 44 competition and competitivity 7, 13, 26, 27, 34, 94, 182 complex adaptive systems 63, 82–83 complexity 3, 4, 45, 46, 47, 61, 64, 67, 68, 77, 80, 82, 83, 84, 97, 107, 110, 114 compliance 2, 12, 14, 113 conflict resolution or settlement 98, 99; as central purpose of law 46; and rights 46 connectivity, landscape 82 connection(s): cultural or tribal 230, 231, 232; emotional 53, 81, 99; metaphysical 81; to nature 98, 224, 225 conservation 108; aims or purposes 113, 201, 202; biodiversity 174, 200, 201; caribou 109; debate 112; definition of 110, 201; of Earth’s ecosystems 63, 154; and ecological restoration 83; efforts 165, 246; environmental 164, 165, 174; forests 164, 173; historic 109; and Indigenous practices 111; management 83; movement 106; natural resource 164, 166, 167; Northern Algonquin 110;

Index policies 165; programs 165; species 78; strategies 165, 166 consumerism 135, 137, 183 consumption 6, 237; ban 142; growth 143; high levels of 241; local 248; material or energy 136, 143, 213, 238, 240; of nature 185; nonessential 142; patterns 140; reduction in 135, 139; responsible 154; taxes 183; water 248 constitutionalism 78, 189; ecoconstitutionalism xv Convention on Biological Diversity 173 cooperative federalism 197, 200 cooperation: environmental 241; international or interstate 3, 41, 62; networks 26 corporation(s): as animations 5, 188; conflicts involving 225; energy 27, 28; interests 243; land transfer to 225; as largest economies 214; and legal personhood 92–94; and maximizing shareholder profit 45, 94; and private property 43, 214, 215; and space mining 47; spying on environmentalists 2, 26 cosmological proposition 125, 126, 127–128, 129, 130, 131 cosmology(ies): collision of 123, 126, 129; Ika 121; Indigenous 131; legal 119, 120, 123 cosmopolitics 4, 113 cosmovision, holistic 2, 11 COVID-19 xiv, 7, 143 Cree peoples 109, 110, 141 crisis(es): biodiversity 11; climate 11, 185, 209; coronavirus 7; ecological xiv, 2, 11, 12, 13, 14, 19, 71, 90, 99, 136, 143, 148, 169, 213; environmental 164, 174; social 2 critical infrastructure 25, 26, 27, 28, 30, 31, 34 Critical Legal Studies (CLS) 180, 183, 184, 185, 186, 187 Critical Theory 183, 184 cross-ontological comparison or translation 126, 129 Cullinan, C. 104, 203 cultural practices 81, 165, 166, 167 culture(s): ancient xv; Australian 241; analyses of 213; clash of 35; collaboration across 217; contributions of 189; of democracy 148; of domination 15, 19; and ecological knowledge 230; habits of 114; human 124, 246; Indigenous 15, 111, 164, 179, 233, 238; legal 214; local 184; loss of

255

111; material 129; nature and 79, 80, 120, 131; of regenerative ecological societies 243; of respect 19; restoration of 77, 84, 85; rights to 92; Western xiv, 15, 170 Darwinian lens 94 decade of ecosystem restoration 77 de-centering 81 decentralization 81, 183, 186 decision-making: discretion-based 147; government intrusion on 216; and local communities 130, 240; multi-criteria 96, 97; rational 83; role of tribes and Indigenous knowledge in 174, 224, 226, 230, 231, 232, 233, 234; and uncertainty 67; values-led 85; and warning signs 64 Dee estuary 52 Deep Space Industries 41, 50 deforestation 168, 210, 240 degrowth 122, 135, 136, 138, 139 democracy 6, 25, 26, 34, 35, 36, 124, 148, 151, 159, 180, 190, 213, 214, 243 deregulation 13, 14 Derrida, J. 179 development 2, 44, 79, 81, 122, 131, 135, 137, 151, 193, 197, 202, 215, 241; coastal 198; community-based 104, 183, 189; developmentalist logic 217; economic 2, 95, 96; energy 25, 29; human 11, 12, 17, 19, 108; marine 84; of natural resources 25, 225, 233; projects 172; socio-economic xiv, 11, 15; sprawl 188; sustainable (see sustainable development); urban 248 Devils Tower National Monument 53 Diamandis, P. 50 dichotomy(ies): anthropocentric and ecocentric 19; cascading 131; human-nature 81; legal/social 184; nature/society 185; ontological 79; problem/solution 78; public/private 214; sacred and mundane 166 Diné peoples 228, 229–230 disease 99 disenchantment 108 dispossession 179, 213 diversity 51; of animations 189; of climate-governance actors 217; cultural 121; ecosystem 109; of Indigenous peoples’ lives 114; of life 15; of radical socio-ecological movements 180; seed 130; of space 53; species 64, 65; of state forms 189; of values 233

256

Index

doctrine of reception 98, 99 Draft Universal Declaration of the Rights of Mother Earth 7 dualism xv, 128; human-nature 1, 90 dut(ies) 92, 157; to celestial objects 49, 53; ecological 154; of environmental protection 4, 149, 156, 157, 159; of fairness and reasonableness 158; fiduciary 147, 149, 150, 151, 157, 159, 160, 195; to future generations 149; of legal persons 93; and nature trust 153; procedural 153, 160; and public trust doctrine 159–160; to relieve ecological stresses 70; and rights to nature 94; substantive 153, 160; triggered by warning signs 62 Earth 2, 3, 15, 40–54, 65, 67, 68, 85, 104, 106, 137, 171, 174, 189, 209, 238, 245; -centered approaches 76, 104, 238, 242, 246, 248, 249; Charter 16; chauvinism 53; commons 159; community (see community); as home 46, 51, 52; ecological capacity of 69, 198; governance 148; human alteration of 61; jurisprudence 1, 3, 40, 44, 45–46, 54, 104, 164, 165, 172–173, 203, 242, 246; law(s) xv, 1, 44, 114, 128, 217; as mother 166, 172; sciences xiv; as self-regulating system 48; system(s) 5, 44, 61, 62, 66, 67, 70, 71, 76, 80, 97, 106, 154, 211, 237, 243; vitality of 106; working order of 113 eco-bio-communitarianism 171 ecocentrism xv, 1, 4, 44, 91, 92, 97, 98, 99, 100, 106, 136, 139, 198, 201, 202, 205, 223, 233, 238, 243, 245; human-inclusive 2, 3, 15, 16, 19, 90, 95, 96, 97, 99 ecocide 7 ecofeminism 6, 52 eco-innovation 14 ecological human rights 141 ecological Indian 4, 104, 105, 107–111 ecological economics 96, 205 ecological footprint 135, 142, 211, 242, 248 ecological impacts 62, 70 ecological integrity 1, 2, 4, 19, 137, 142, 155, 194, 195, 246, 247; preserving or protecting 136, 199, 203, 238; primacy of 201, 202; restoration of 77, 85, 137, 238; sustaining or maintaining 114, 198 ecological justice 106, 136, 137, 139, 142, 198, 199, 202, 238 ecological knowledge 112; definition of 230; Diné 229; Indigenous 223, 226,

227; traditional 82, 105, 230; tribal 6, 224, 228, 230–234 ecological law: and collaborative management 234; compared to environmental law 194; critique of Australian legal system 238–242; definition 136; and degrowth 136; and Earth jurisprudence 172; and ecological restoration 76–85; emerging field of 1; features of 156; as framework for the Anthropocene xiv, 61–71; in Germany xv; impediments to 25; and Indigenous knowledge 105, 111–114, 223–234; and lawyers 193–205; and legislation and planning 196–202; lens of 198, 201; and litigation 194–196; and mining 136, 142; movement 44; and needs-based constraints 135–143; place-based 140; principles of xv, 106, 136–137, 223, 237, 238; and protest 26; relational vision of 2; and right relationship 244; and rights of nature 90–101; rule of 156; scholarship 203–204, 242; shift or transition to xv, 1–2, 5–6, 11–19, 237; as a solution 2–4; teaching 204–205; theory 47, 143, 242; and traditional African religion 165 Ecological Law and Governance Association (ELGA) 1, 242 ecological lawyers 104 ecological limits 4, 6, 96, 98, 100, 135, 136, 137, 140, 141, 240, 241–243, 245, 246, 248, 249; global 201; healthy 6, 237; primacy of 97, 198, 202, 238 ecological logic 80, 82 ecological primacy 106, 136, 137, 142, 198, 199, 200, 202, 203, 238 ecological solidarity 97 ecological trajectory 76, 83 ecological virtues 2, 41 eco-logics 98 ecology xiv, 6, 7, 63, 65, 76, 78, 81, 97, 106, 112, 139, 168, 182, 187, 189, 197, 202, 203, 237, 241, 242; see also political ecology economic growth 13, 26, 34, 136, 137, 155, 159, 183, 240–241; insistence on 201, 202, 205; unlimited 11, 92, 242 economic rationalism 79 economics 51, 78, 242, 244; Australian 241; community 249; cooperative 183; degrowth 136; Doughnut 242, 245, 248; ecological (see ecological economics); global 41; growth-driven 1; neoclassical

Index 13–15; neoliberal 7; rational person of 94; as reciprocity 131; Steady State 245 economy(ies): American 27; assumptions of 152; Canadian 29; capitalist market 142, 180, 214; communal 188; constrained within ecological limits 135, 238; corporatist 188; Earth 244; ecologically sustainable 139; as embedded in ecosystems 3; extractivist 122; global 90, 186; growth-based 214; human 8, 96, 245; infinite-growth 218; modern 107; and monetization 96; national 186, 242; new 242; political 105, 185, 187; regenerative 6, 237; and science 212–213; and sustainable development 17, 241, 245; transition 243; and warning signs 2; Western 45 eco-philosophy see African eco-philosophy ecoregion 246 ecoscapes 82 ecosystem(s) 18, 125, 156; Bears Ears 229; capacity to support life 62, 66; collapse of 62; as a collective 48; commodification of 84; community 6, 237; complexity of 82; components or elements of 63, 84, 91, 94; conservation of 167; desert and semi-desert 231, 234; destruction of 11, 84; disturbance of 13, 64, 65; diverse 224; Earth’s 136, 148, 154; exploitation of 69; flourishing 97; and forests 164, 168; fragile or vulnerable 61, 168, 201, 202; functioning of 61, 63, 66, 70; and global governance 154; health and integrity of 11, 12, 14, 15, 17, 18; human services to 96; human alteration of 62, 68, 80, 159; human understanding of 62, 63, 65; humans as part of 11, 15, 16, 17, 18, 61, 98; impacts on 61, 156–157; and Indigenous peoples 6, 80, 111, 226, 228, 234; interacting 48, 62; internal 217; local 78, 95, 111, 240, 243, 247; management 224, 234, 249; marine 68, 69, 197, 210; monetary valuation of 97; national 231; non-linearity of 61, 63, 64, 110; protection of 5, 15, 16, 17, 18, 19, 61, 66, 70, 91, 249; and public trust doctrine 153; region-scale 246; remote 94; resilience of 64; restoration of 70, 76, 81, 83, 137; rights of 52, 106; services (see ecosystem services); severing of 225; socio- 121, 123, 189, 190; supporting 91, 99; sustainability of 170; threats and risks 61, 62, 65, 70,

257

142; tipping points in 64; uncertainty about 3; warning signs for 3, 64–65, 67, 69; well-functioning 99 ecosystem services: 77, 78, 84, 96 eco-terrorism 28 Ecuador 16, 91, 92, 106, 123, 127 education and educators 142, 171, 241; legal 5, 204, 209–218 efficiency 30, 84, 170 elders 98, 109, 112, 169, 172 Ellingson, T. 108 embeddedness 2, 3, 7, 76, 79, 94, 98, 122, 123, 128, 140, 213, 246 emergency(ies)13, 139, 209, 212 Endangered Species Act 205, 227 enlightenment 51, 100, 107 entitlement(s) 139, 140, 141, 209, 213, 214, 215, 217 environment 7; abiotic 65, 66; assumptions about 78; biophysical 185; components of 154; definition 16; duties to 149, 156–158; forest 168, 174; framing of 79; global 155; governance of 148, 152, 155; healthy 91, 93, 95; impacts on 18, 147, 172; and Indigenous knowledge or peoples 4, 108, 164, 165–167, 169; limited 189; local 244; management of 154; marine 5, 69, 194, 204; movement 28, 34; narrative of 82; natural xv, 4, 147, 182, 193, 194, 247; physical 187; protection of 12, 13, 147, 156, 158, 193; reductionism and 79; replica 77, 83; semantics of 79; shared 156; space 41, 44; state of 156, 239; and sustainability 17, 167, 245; trustee of 157, 195; of Venus 53 Environmental Protection Agency 227 environmental ethics see ethics environmental impact assessment (EIA) 18, 19, 66, 172, 200; see also Canadian Impact Assessment Act; impact assessment environmental justice 84, 183, 223 environmental law: and adaptive governance 83; behavioral effectiveness of 12; as boutique subdiscipline 97; command-and-control regime of 193; compared to ecological law xiv, 16, 81, 100, 113, 203, 238; ecological approach to 16; emergence of 193, 223; evolution of 13, 233; failure and flaws of xv, 1, 2, 3, 14, 76, 82, 136, 152, 173, 193, 240; “good” 82; and human-centered growth 243; and Indigenous knowledge or peoples 1, 3, 224, 226–227;

258

Index

international 12; legal effectiveness of 12, 19, 153; and liberal jurisprudence 77, 179; modernist tradition of 80; and neoclassical economics 15; political vulnerability of 193; problem-solving effectiveness of 13; and protection for nature 128; and rights of nature 90, 92, 95; “splendid isolation” of 217; transition from 1–2, 5, 6, 11–19, 78–79, 85, 194, 204, 205, 233; and trusteeship 147, 149, 156; United States 223, 224 environmental literacy 216 environmental organizations 2, 25, 27 Environmental Protection Agency 227 environmental studies 193 epistemological monoculture 82 equilibrium 15, 16, 110 equity and inequity 71, 137, 155, 173, 199, 202 Escobar, A. 125 ethics 40, 45; bioregional 51; do no harm 52; environmental 42, 47, 48; human-centric 47; narrowness of 41; partnership 16, 81; of place 2; and restraint 50, 52, 110; stranger 2, 42, 52–54; virtue ethics 49, 50, 51 Ethics Specialist Group of the IUCN World Commission on Environmental Law 1 ethnobiology 4, 105 EU Environmental Impact Assessment Directive 66 Europe 95, 179 European imperial powers and colonialism 98, 213, 225, 226, 233, 238 European romanticism xiv European Union: climate change legislation 13; Emissions Trading Scheme 14; environmental impact assessment 66; law 18; Treaty on the Functioning of 17 exclusion, right of 41 exegesis 127, 130 existents 119, 123, 130, 131 experts or expert class 3, 50, 79, 80, 84, 139, 185, 217, 232, 244, 245, 247, 249 externalities 13, 14, 83, 183, 186 extinction: animals 166; mammal 239; pace of 186, 210; Rebellion 35; (sixth) mass 12, 45, 109; species 68, 69, 109, 152 extraction: growth of 143; and harm 42, 50, 92; material or resource 25, 82, 84, 142, 143, 172, 184, 193, 211, 217, 240; space 2, 41, 43 extractivism 36, 122, 124, 128, 130, 131, 241

federal common law 195 federalism 197, 200, 227 feminist perspectives 6 fiduciary duties see duties fire 80, 109, 166 First Nation(s): analyses of colonization 213, 214; in Australia 244, 245; in Canada 29, 30, 34; communities 34; knowledge 247; lack of treaties with 239; law 209, 213, 214, 239; peoples 238–239, 241, 247; rights of 26; sovereignty of 238, 239 Five Eyes intelligence alliance 25 flourishing 11, 15, 97, 101, 107, 168, 171, 182, 189, 190; common or mutual 7, 18, 77; ecological 81; future 41; human 138, 172 forest(s): in African traditional thought 4–5, 164–174; and carbon regulation 70; as co-creators of law 98; conservation of 164; ecology 7; as law 120; ontological value of 168; and rights of nature 122, 128; sacred nature of 108, 164; and Sapara Nation 106 fossil fuels 243 future generations 4, 137, 139, 147, 148, 149, 150, 152, 153, 169, 173, 189, 198, 201, 202, 216, 231, 243 Gaia: Foundation 104; hypothesis 48 Garver, G. 156, 201, 203, 205 gendered perspectives 6 Ghana 2 gift: giving or exchange 35, 96; gratitude for 107; and hunted animals 109; relations 7 globalization 185 global warming 68, 69, 156, 164, 193 goods and services 85, 138, 142, 143, 248 Gough, I. 138 governance: adaptive xi, 83; bioregional 249; business-as-usual 1; Earth 148; ecological 3, 6, 76, 84, 85, 173, 237, 241, 249; environmental 4, 82, 84, 147, 148, 238, 239, 240, 241, 244, 249; fiduciary 148; international 12, 148; multilevel 82; place-based 81–82; regenerative 237 Graham, N. 204 grandfathering 80 gratitude 2, 41, 51, 53, 107, 110 Great Chain of Being 99

Index Great Lakes 197 “great work” 6, 51, 54, 106, 242 Greece, ancient 93 greenhouse gases 63, 68, 69, 95, 210 green legal theory (GLT) 5, 143, 179, 181, 182, 184, 185, 187, 188, 190 Greenprints 237–249; approach 237, 241–249; capacity building 249; Handbook 243, 244, 247; scenarios 248; Workbook 244 grounded law 107 growth see economic growth habitat see species Hallowell, I. 106 Haraway, D. 6 harmony with nature see nature healing 54, 77, 125, 126, 128, 130, 131, 169 health 125, 142, 180; of animals, plants and soils 106; and autonomy 139; community 189; ecological 182, 223, 246, 247; economic 25, 242; ecosystem 11, 12, 14, 17, 18; environmental 78, 154; human 18, 49, 78, 168, 223, 231; of marine ecosystems 210; mental 138, 171; of Mother Earth 172; physical 138, 171; planetary 179, 186, 215, 243; socio-ecological 182; and well-being 140 hegemony 180, 182–184, 186–187 hierarchy 79, 99, 138, 169, 190, 214, 217 Higgins, P. 7 historical continuity and fidelity 77 holism xv, 1, 223, 233 Holocene 64, 211 Honig, B. 34 honorable harvest 98 human-Earth relationship 11, 90, 91, 98, 99, 100, 106, 108, 159, 195, 203, 238 humanity 5, 11, 19, 46, 47, 54, 111, 166, 187; agents of 155; connection to universe 51; duty to respect nature 17; ecological life support systems of 92; ecosystem change caused by 3; limits of 48; and nature 148; place in the world of 242; planetary influence of 63; relationship with Earth 90; sustainable development for 12; well-being 165 human services to ecosystems 96 humility 2, 41, 50, 51, 107 hunting 34, 109, 110, 111, 112, 113, 140–141, 164, 167, 170, 226, 228, 229; overhunting 109

259

Ika 121, 125, 127 Illich, I. 135 incentives 13, 41, 43, 165, 183, 197 incommensurability 126, 129 India 91, 240 Indian Country 224, 225, 226, 233, 234 Indigeneity 3, 105, 108, 112 Indigenous African communities and beliefs 164; see also African traditional thought Indigenous land management 78, 80 Indigenous lands 225, 226, 233 Indigenous legal traditions 1, 3, 4, 6, 98, 99 Indigenous peoples 53, 54, 98, 99, 104, 106, 111; consent of 201; consultation with 226; and “ecological Indian” 110; and ecological law xv, 4, 111–114, 233; and forests 168; knowledge of 3, 82, 105, 111, 202, 234; participation of in decision-making 82, 174; relationship to nature 108–109; suppression of 224–226 Indigenous rights 108, 121, 183 Indigenous worldviews 53, 92, 93, 95, 99 individualism xv, 1, 107, 109, 180 Industrial Revolution 41, 215, 242, 243 inequality 137, 169, 183, 187, 212 Ingold, T. 120 innovation 13, 14, 43, 50, 173, 181 Innu peoples 109, 113 institutional frameworks 5 integration: of environment in economic activity 17; of humans into nature 90, 91; of Māori worldviews 91; principle of 17 integrity, ecological see ecological integrity intention, goal-oriented 3 interconnectedness 166; of all beings 4, 106, 136, 155, 156, 238, 240; ecological xiv; of humanity and nature 148; of humans and nonhumans 152; of systems 97 interdependence 76, 107, 127, 217; of all beings or things xiv, 4, 214; of bioregions 247; cosmologies of 131; of human and non-human communities 16, 171, 174, 238, 240; language of 123; material practices of 121; radical 107, 119, 123, 131; separation and 125, 126; of social and ecological systems 85 Intergovernmental Panel on Climate Change (IPCC) 68 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) 82

260

Index

International Geosphere-Biosphere Programme 69 international law 7, 17, 41, 54, 67, 155, 194 international obligations 40 Inuit peoples 109 IPATe framework 248 ipseity 179, 180, 181, 189, 190 Italy 1 IUCN Red List of Ecosystems 65 IUCN World Commission on Environmental Law 1 Judeo-Christian morality 99 judges 151, 152, 196, 205, 233 judiciary: bias 151; judicial oversight 153, 158; and public trust doctrine or trusteeship 147, 151, 152, 154; reform 183; and rights of nature 4, 95, 119; and rule of law 184–185 justice 173, 185; administration of 196; allocation of 120; and civil rights 92; climate 217; distributive 139; ecological 106, 136, 137, 139, 142, 198, 199, 202, 238; economic 15; environmental 84, 183, 223, 231, 248; interhuman, interspecies and intergenerational xv, 100, 213, 223, 233; legal 185; natural and human 40; social 183, 248; “trade” 185 Kahn, P. 180 Kimmerer, R.W. 7 kin and kinship 3, 6, 7, 98, 104, 106 Kiowa creation story 53 Klinger, J.M. 42 Kluane peoples 111 knowledge see ecological knowledge; First Nation(s); Indigenous peoples Krech, S. 108 Ktunaxa Nation v. British Columbia 113 land: ethic 84, 107, 203; grabbers 94; as sacred 164, 231; use 6, 44, 142, 237, 246, 247, 248, 249 landscape(s) 18, 169, 213; clear-cut 188; colonial 239; “empty” 179; humans as part of 41, 107; intergenerational 78; legal 95; matrix 168; natural 168; remote 184; resilient 77; restoration (see restoration); sacred and historic 231; scale 77; scars on 231; sentient 114; values 77 Langdon, S. 110 language 81, 189; of ecological jurisprudence 44; foreign 239; Indigenous 225; of interdependence

123; law as 119, 120, 122, 124, 131; legal 126; more-than-human 120; and rights of nature 121–122, 124, 125, 126, 127, 129, 130; shared 77 Latin America 4, 119–131 law(s): adaptive 97, 156; Canadian public 4, 147–160; central purpose of 46; civil 98; common xiv, 98, 147, 152, 157, 194, 195, 196, 238; contemporary 2, 3, 5, 19, 23, 90, 92, 97, 98; customary 168, 173; Earth xv, 1, 44, 114, 121, 128; environmental (see environmental law); ecological and ecological approaches to (see ecological law); forests, mountains and rivers as 120; as a human domain 122; human as subject of 78; Indigenous 98, 104, 105, 113, 114, 214, 215, 216; international (see international law); interpretation of 5, 16, 17, 98, 196, 205; letter of 17; liberal 180–182, 184; as linguistic or propositional 4, 119; as meshwork 120–122; modern 5, 121; nature as object of 78; pivotal role of 12, 19; place-based 3, 140, 214, 215, 216; relational ontology of 119; revision of 5, 44, 205, 224; Roman 93, 150; schools 193, 202–204; and separation from life processes 119; social 5, 179, 181, 188, 190; space (see space); spirit of 17; taxonomy of 214–216; transformative potential of 76, 215; tribal 5, 226; as a way of life 120; Western xv, 94, 98, 99, 213, 214, 216, 217; see also Indigenous legal traditions Law of the Guardianship of the Earth of the Inga People 127, 129 lawyer(s): as citizens 205; -client relationship 196; as judges 205; as legislators 196; as litigators 194, 196, 205; new generation of 205; as planners 196, 200; role in transition to ecological law 193–205; as scholars and teachers 205 legal cosmology 120 legal frameworks 80, 233; Australian 241; rights-based 90; Western 215 legalities: ecological 85, 104; humancentric 104; Indigenous 4, 111; international 41; “rooted” 107 legalism 5, 179, 183 legal personality 91, 93; see also person and personhood legal profession 5, 203, 209, 215 legal subjectivity 119, 121, 122, 125, 131

Index legal systems xv, 79, 80, 105, 124, 126, 160, 243, 249; anthropocentric 3, 14, 76, 91; Australian 237, 238–241; dominant 173; ecological 79, 82; holistic 159; of independence to interdependence 76; Indigenous 98; modern 238; nonIndigenous 216; resistance to change in 205; US, re: tribes 224, 225; Western 78, 93, 98, 217 legislation: climate change 13; environmental 13, 14, 193; existing 16; on forest conservation 173; “hyperlegislation” 30; and planning 196–202; proactive 172; public trust-inspired 149, 151; rights of nature 91, 122; US space 40, 41, 44, 47, 54 legislators 5, 153, 196 Lazarus, R. 151, 152 Leopold, A. 48, 91, 106, 156, 203 Lewis, J. 41 Ley de Origen 121 liberal order 179, 181, 182, 184, 185, 186, 187, 190 liberalism 79, 182, 214, 216 life: discovery of 42; good 50; on Mars 49, 53; microbial 45, 49; planetary 12; “reverence for” 52 lifeworlds 4, 106, 107, 109, 113, 114, 124, 125 limits: based on needs 140; ecological (see ecological limits); on economic activities 143; of environmental law 193; on goods and services 142; on human activity 203; of humanity 48; -insistent system 205; living within 15, 241, 242, 243, 245; of nature 15; on property rights 193; on wealth 137; see also planetary boundaries local people 78, 165 “location of healing” 77 Locke, J. 51, 180 Lummi Nation 194 Magnuson-Stevens Act 205 Makah whale hunt 111 Manifest Destiny 225, 234 maps 112, 246, 248 marginalized people(s) or communities 84 marine ecosystems 68, 69, 197, 210 marine environment 5, 69, 194, 204 marine genetic resources 200, 201 Marine Mammals Protection Act 205 marine protected areas 200 Marine Strategy Framework Directive (EU) 66

261

marine technology 200, 201 market-based approaches 13, 14 Mars 42, 46, 48, 49, 51, 53 materiality 216; material conditions 216; socio-material relations 130 McCarthy, M. 52 McGill University 203, 204 Merchant, C. 6 meshwork see law metals 42, 43; extraction and mining of (see mining) Milky Way 48 mine closures 84 mining 2, 42, 43, 47, 230, 232, 248; asteroid 41; celestial 50; discoveries 44; and ecological law 136, 142; industry 41, 43; metal 42; private control of 45; rights 43 modernism 6, 80, 186 Mohawk peoples 112 Momaday, N.S. 53 monitoring 19, 99, 155, 172, 238; environmental organizations 27, 31; by Indigenous peoples 110; and restoration 81, 83 moon 41, 42, 52, 53, 54, 123 morality 4, 7, 12, 49, 50, 99, 100, 159, 167, 170 moral standing or status 47, 49, 107 moral order 167 moral philosophy xiv, 49 more-than-human beings, lifeways or worlds 3, 4–5, 76, 77, 79, 84, 85, 121, 126, 130, 209 mortgage markets 84 mosquitoes 99 Mother Earth xv, 5, 16, 121, 140, 166, 172 Muir, J. 91 myth(s) 4, 105, 108, 109, 110, 111, 114 Nadasdy, P. 111 narrative(s) 78, 108, 110; and the Anthropocene 211–213; anthropocentric 79; of ecological interconnectedness xiv; ecosystem services 84; of the environment or environmental law 82, 85; of flourishing human-Earth relationship 97; of ipseity 179, 180; legal 79; of rock climbing 52 National Oceanic and Atmospheric Agency (NOAA) 197 National Park Service 53 National Standards for the Practice of Ecological Restoration 83

262

Index

Native Americans 50, 199 natural resource(s): in Africa 169; of coastal zone 197–199; collaborative management agreements 5; conservation 164, 165, 167; control over 240; decision-making 233, 234; depletion of 14, 41, 226; development 25, 225; dominion over 225; and ecological justice 137; exploitation and use of 11, 14, 17; law 5, 231, 233–234; management 7, 164; policy 234; protection of 25, 30; and restoration 78; rights to 122; subsurface and offshore 234; and trusteeship 147, 150–151, 152, 153, 154, 160; values attached to 18, 230 Natural Resources Canada 29 natural world: as collection of objects for human use 242; commodification of 85; consumption and erosion of 185, 246; destruction of 241; externally existing 4, 119; humans as part of 81; and identity dilemmas 113; as property 212; resilience of 246; as source of mystery, wonder and awe 51; systemic inattention to 183–184; understanding of 82; unknown elements of 230; in Western thought 51 nature: abstraction of 6; “cheap” 213, 215; complexity of 41, 45; diffuse 123; discreteness of 123, 124; harmony with 11, 15, 16, 19, 101, 108; human domination of 2, 15, 17, 90, 170; identity politics for 124; interrelatedness of 40; legal embeddedness of 123; as a legal person 91, 93–95, 123, 131; mastering 51; more-than-human 3; nonhuman 47, 90, 91, 92, 94, 96, 97, 99; rights of (see rights of nature) naturehood 3, 91, 97–100 Navajo Nation 229, 230, 238 needs: -based constraints 135–143; basic 135, 138, 139; Basic Needs Approach 138, 139; human 4, 135, 136, 137, 138–140, 141, 142, 143, 198; Human Capabilities Approach 139; meaning of 4, 140; satisfiers 138, 139, 143; “theory of human need” 138, 139 neoliberalism 26–27, 30, 34, 36 New South Wales 238 NewSpace 51 New Zealand 31, 91, 92, 109 Nigeria 1, 166, 168, 172, 173 “noble savage” 105, 108, 109

nomosphere 181, 182, 184, 185, 186, 188, 189, 190 non-Indigenous cultures 15, 114, 225 non-separation 121 norms 4, 13, 26, 107, 119, 123, 127, 130, 170 North America 213, 225, 95, 104, 105, 108 Nunavut Wildlife Act 140 Obama Administration 40, 231–232, 233, 234 Obama, B. 26 oceans 154, 200, 201; acidification 69, 71, 201, 210; biomass 70; chemistry 62 offerings 109, 121, 170 offsetting 84 offshore energy production 31, 197 ontologies of separation 122–124 Oslo Manifesto for Ecological Law and Governance 1, 223, 233, 238 other-than-human beings or relations 4, 113, 114, 119 Outer Continental Shelf Lands Act 205 Outer Hebrides 44 outer space see space Outer Space Treaty 40, 41, 43 overpopulation see population overshoot 70 ownership: attributes of 41; common 156; community 244; exclusive 2, 44; land 225, 226; private 44, 93, 154; property and 79, 152; rights of 44, 153; of space 40 Pachamama 123, 127, 128, 130, 131 pagamentos 121 pandemics xiv, 7, 143, 185, 188 partnership ethic see ethic Pasternak, S. 190 peasant communities 124 peer-to-peer learning 245 Pennsylvania 91, 95 permits 197; tradeable 13 person and personhood: children 46; corporations 92, 93, 94; guilds 93; juridical 92; legal 93; minors 93; municipalities 92; natural 93; for nature 3, 90, 91, 93, 94, 119, 123; non-human or other-than-human 106, 113, 130; slaves 46, 93; and social or political status 93; trees, forests and mountains as 98; trusts 92; women 46; see also rights of nature place-based ethics see ethics place-based law see law place-based learning 204, 217 Plains Indians 53

Index planetary boundaries 6, 11, 44, 211, 212, 237, 242; downscaling 248; and ecological limits 245; and ecological primacy 106, 137 Planetary Resources 50 plant(s): as ancestors 106; and asteroids 42; as existents 120; gathering 226; health of 106; knowledge 82; legal rights to protect 230; medicinal 170, 229; as part of nature or Earth community 166, 168, 172, 242; rare 169; sacred 168; soul of 120; vibrancy, sociality and meta-physicality of 82; vitality, intelligence and volition of 106; as ways of life 120, 130 Plumwood, V. 6 pluralism and plurality: epistemic 82, 83; intellectual 82; legal 3, 98 plutocracy 240, 243 policy: of academic freedom 203; Australia 26, 240, 241; bureaucratic-rationalistic 79; Canada 26; climate change 217; economic 26; environmental 80, 82, 173, 193; federal Indian 228; in management of activists 28; and monetary valuation of ecosystem services 96; natural resources 234; and needs 135; research 210; restoration 84; social 77; space 44 policymakers and policymaking 5, 47, 48, 61, 209, 215, 244 political ecology xiv, 187 political economy see economy political will 79 politics 6, 26, 112; Australian 240; enlightenment 107; feminist 6; identity 124; Indigenous 111; as law 184, 186; state-based 184 pollution 11, 14, 15, 35, 46, 151, 172, 173, 202, 223, 227, 248 population: affluent 212; of alternative movements 34; civilian 28; density 109; displacement 210; growth 197, 200, 224, 248; human 80, 136, 137, 139, 184, 243, 248; and human health 18; insect 46; local 190; moose 111; overpopulation 42; predator and prey 99–100; species 110 power: acquiring 43; adaptive 182; animationist 182; centers of 184; concentrated 184; constitutive 184, 185, 187, 190; corridors of 183; disproportionate 243; elite 184; entrenched 205; in fiduciary relationship

263

149; government 151; hegemonic 182; hierarchical 190; imbalance 92; imperial 213, 238; of judges 151; of the liberal order 179; magical 170; money and 172; regulatory 227; relationships 95; rhetorical 110; self-generative 186; statutory 158; of wealthy private interests 243; sharing 165; social 187, 189; spiritual 167, 229; state 159, 180, 185; “that gives itself its own law” 179; structures 5, 181, 242, 243; wind 44 precaution 3, 29, 45; precautionary principle or approach 14, 66, 67, 142, 202 preservation: biodiversity 109; cultural 199; ecological 150, 171, 174; ecosystem 17, 62, 70, 71; environmental 164; historical 199; of populations 110; of watercourses 168; wilderness 183 profit 27, 41, 43, 44, 45, 50, 51, 94, 172, 188, 212, 218 property 122, 182, 204; “bundle of rights” metaphor of 41; celestial resources as 41; common 147, 159; and cooperative relationships 44; human 92; intellectual 43, 44; interests 94; land and 81; law 44, 51, 152; liberal theories of 151, 152; metaphor of 41; natural world as 212; off-Earth 44; ownership of 93; public 35, 151, 152; private 44, 79, 81, 151, 152, 154, 160, 179, 204, 214, 215; and reciprocal obligations 41, 44; regimes 40, 43; rights (see property rights); structures 25; theorists, green 151; trust 149, 195 property rights xv, 43, 92, 151, 154; enforcement of 90; human 193; limitation of 193; public 151; private xv, 40, 79, 151, 243; unfettered 43 prosopon 93 public access 199 public interest 147, 148, 150, 152, 157–159, 160, 184, 214, 215 public safety 199 “public things” 26, 33–36 public trust doctrine 4, 147, 148, 149, 150–152, 153, 157, 158, 159, 195, 196 quality of life 15 quantum physics xiv, 44, 45 Quechua-speaking people 123 Queensland 238, 244 rationalism 6, 79, 180 real utopia 249

264

Index

reciprocity 3, 85, 98, 107, 113, 131, 189, 190, 195, 239 reclamation 84 recycling 43 reductionism xv, 1, 36, 79, 90, 107 reference point 28, 76, 182 re-formation 179, 184, 186, 188 regeneration 90, 128, 130 regulation(s) 61, 62, 98, 197; challenge for 64; coastal 204; ecological 61, 62, 66, 70, 71; enforcement 147; environmental 13, 44, 79, 188, 195, 196; extra-territorial 227; gossip or shaming as 110; of human activities 64; land use 44; of the marine environment 204; prediction-dependent 65, 66; of seabed resources 200; service, carbon 70; state-centered 143; warning signs as basis for 67 regulatory burdens 13 rehabilitation 84 reincarnation 109 relational legal ontology 120 relationship(s) 121, 131; communal 92; compared to rights 92; competitive 7; cooperative 44; of the corporate form 214; and ecological restoration 85; ecologically sustainable 90; fiduciary 149, 159; human-animal 109; human-Earth 91, 94, 97, 98, 100, 106, 156, 159, 195, 203, 238; human/ ecosystem 62, 63–64, 67, 69, 70; of humans and more-than-human worlds 5, 40, 47, 81, 84, 94, 96, 99, 209, 216, 244; with Indigenous peoples 105; lawyer-client 196; material 120; mutually enhancing 3, 11, 94, 98, 106, 159, 170, 195, 203, 238; with nature 76, 79, 91, 94, 152, 155; to place 81; predator-prey 99; power 95; principal-agent 149; reciprocal 3, 76; right 15, 244; sacred kinship 98; security 25, 32, 33; socio-ecological 122, 130; symbiotic 7, 105; trust 149, 155, 195; utopic 108; web of 106, 127, 128, 129, 166 religion 166, 167, 242; see also African Traditional Religion remediation 80 renewable energy 42, 199 renewal 81, 154; of culture 77 replica environments 77, 83, 84 representation, legal 5, 130 research 76, 238; contracts 120; data 216; in education 217; on international governance 12; legal and policy 71,

210, 213–215; multidisciplinary 244; scientific 212, 215; social sciences and humanities 212, 215; value 199 resilience: coastal zone 199; ecological 247; ecosystem (see ecosystem(s)); marine waters 66, 68; natural world 246; socio-ecological 76, 83 “respect” for life 15 responsibility(ies) 129, 157, 165; age of 11, 18; to care for and maintain relationships 107; collective xv; to community of life 98; ecological 44, 94; and ecological restoration 81; grave 51; of humans to nature 17, 19, 148, 159; legal 93, 148, 196; to mosquitoes 99; natural/ethical 189; for past harms 80; professional 209; to protect the environment 156, 158; and rights 2, 11, 127; and rights of nature 94, 96, 97; spiritual 81; State 156 resource extraction 25, 82, 193, 240 restoration: as a commodity 84; ecological 3, 76–85, 247; eco-cultural 3, 76, 77; of ecosystem resilience 62, 70, 71; “ethic of ” 84; focal 77; landscape 77, 78, 80, 81, 82, 83; of law and governance 76, 84–85; reciprocal 76, 77; technological 84 revolution: ecosystem 188–190; “legal” 119; in thinking 16; see also Industrial Revolution reweaving the legal fabric 122, 124–131 right relationship see relationship rights: age of 11; corporate xv, 44, 79; to die with dignity 99; individual xv, 93, 216, 218; of insects 46; interdependent 90; littoral 204; mutual 46; of nature (see rights of nature); property (see property rights); resolving conflicts among 46; and responsibilities (see responsibility(ies)); of rivers 46; state-sanctioned 4, 119; universal existence 46 rights of nature xv, 1, 3, 4, 90–101, 183, 223; alternatives to 91, 94, 95, 97; anthropocentrism in 90, 93; battle with other rights 90, 95; and Bolivian law 140; and burdens of proof 95; as cosmological proposition 125; and concealing of extractivist economies 122; constitutional recognition of 92, 106; as counterforce to corporate personhood 92; ecocentrism in 91–92; and economic growth 92; emergence and status of 91; and fragmentation of

Index the living 119; and geographic scale 95; as icon of environmental statehood 124; and Indigenous worldviews 92–93; judicial interpretation of 95; in Latin America 4, 119; and legal personhood 91, 93–97; as a “legal revolution” 119; as meshwork 122, 125; and monetary valuation of ecosystem services 96; monoculture of 95; movement 91, 92, 94; and legal naturehood for people 97–100; objective(s) of 90; and ontologies of separation 119, 122–124; potential to heal socio-ecological relationships 119, 122; potential to “heal the web of life” 124; and property 92; realpolitik of 121; relative to other rights 90, 95; and responsibilities 94, 96; risk of erosion 95; scope of 95; as signalling shift toward ecological law 100; as state language or proposition 125, 129; as text and as teks 125–128; as transitional 91, 100 rights-holder 130 Rio Declaration of 1992 14 Rio Summit of 1992 241 risk(s): assessment 79; ecological 68; to ecosystems 61, 62, 64, 66, 69, 70; and EIA 18; environmental 18, 50; financial 50; human 18; indicators of 65; management 33, 79; of off-Earth property 44–45; and “red zone” of exposure 67; safety 50; of undesirable ecosystem change 3; warning signs of 3, 64, 65, 67, 68 ritual(s) 106, 110, 114, 120, 121, 225 Rivers and Harbors Act 194 Rolston, H. 51 Rome, ancient 93 Roy, S. 195, 204 Royal Canadian Mounted Police (RCMP) 25, 28–29 rules of accretion and erosion 195 sacred groves 168, 170 sacred sites 168, 230 sacrifice(s) 43, 100, 167, 170, 209, 216, 217, 218 Safe Drinking Water Act 227 “safe operating space” 11 Sahl, M. 205 Sapara Nation 106 Sax, J. L. 147, 150 scholarship xiv, 138, 193; academic 67; degrowth 138, 139; legal xv, 5, 61, 105,

265

136, 194, 202–205; social science 214; transdisciplinary 82 science and scientists xiv, 40, 45, 49, 54, 100, 113, 154, 156, 180, 185, 209, 211; best available 202; climate 214, 215; contemporary 98; conventional 113; Earth systems xiv, 237; ecological 65, 79, 82, 106, 223; environmental 82, 193, 212; fiction 46; Indigenous 249; modern 100; natural 63; philosophers and historians of 6; progress in 51; restoration as 78; social xiv, 82, 107, 210, 212, 213, 214; tribal 227; Western 3, 211, 234 scientific discourse 211 Scotland 44 Schweitzer, A. 52 sea-level rise 193, 205 sense of place 78, 81 shaman 114, 120 Singer, P. 52 slavery 169 Smithers, G. 111 social logics 179, 181, 182, 185 society(ies) 11, 12, 17, 19, 47, 76, 97, 139, 142, 241; affluent 4, 143, 216; built on anthropocentric worldviews 95; civil (see civil society); carbon-free 14; ecological 243; ecologically just 136, 238; human 26, 99, 172, 212, 218, 242, 245; inequitable 4, 135; industrialized 6, 237, 242, 246, 248; modern 15, 99, 124, 129, 170, 187; neoliberal 43; regenerative 6, 237, 243; sustainable 148; traditional African 164, 167; twenty-first-century 114; unsustainable 135; Western 216, 242 soul 120 South Australia 238 sovereignty 35, 179, 189; and fiduciary relationship 159; First Nations 239; national 243; parliamentary 148; state xv, 148, 154, 155; tribal 225, 226; under the Space Act 40–41 space: and alienation from Earth 46; and “backward contamination” 45; benefits, sharing of 43; and “Earth” jurisprudence 45–47; and environmental ethics 47–48; equal access to 41; ethic (see ethics); exploitation of 42–43; exploration 41, 42, 46; and “forward contamination” 45; “frontier” 43, 45; law 44; outer 2, 40–54; property regimes of 43; as “province of all

266

Index

mankind” 43; as resource subject to ownership 40; resources 40, 41; shuttle 46; as substitute habitat 47; travel 42; unknowns of 45; viewing Earth from 46 species 124, 135, 167; abundance, loss of 90; concern for 137; conservation 78; diversity of 64, 65; endangered 173, 183; extinction (see extinction); habitat 63; insect 46; interconnectedness 156; marine 69; and nature spirits 164; nonhuman 45, 137; populations 110; protection of 5, 173, 227–228, 233; rare 46, 168; and taboos and totemic affiliation 165–166; threats 69, 210; of tribal importance 229 spirits and spiritual beings 120, 127, 130, 164, 166, 167, 170 spirituality 121 spying 2, 25, 32, 33 stakeholder(s) 29, 81, 174, 243 standards: American Bar Association 203; of ecological law 198, 199, 202; of ecological protection 14; environmental 227; of environmentalism 111; fiduciary 149; living xiv, 71 stars 3, 53 state-centered approach(es) 92, 95, 143 “state-corporate symbiosis” 27, 28, 34, 36 stereotypes 108, 111, 112 stewardship 81, 82, 84, 110, 147, 228, 231 Stockholm Declaration of 1972 17 Stone, C. 91 story(ies) 79, 229; of coyotes 229; Indigenous 3, 53, 112; origin or creation 51, 53, 113 Straits of Georgia 194 strategic environmental assessment (SEA) 19 subsidiarity 238, 240, 249 subsistence 81, 138, 195, 224 suffering 52, 92, 209, 217 sufficiency 4, 135, 136, 137, 139, 140, 143; self- 135 Sumak Kawsay 92 Sunshine Coast, Queensland 244 superstitious beliefs 121 sustainable development 12, 15, 80, 201, 202; in Australia 240; definition of 137, 246; ecological core of 17; ecologically 245; failure of 12; nexus 155; principle of 19; çreassessment of 117; three intersecting circles of 17 sustainability xv, 4, 104, 156, 169, 201, 202, 242; assessment 19; and ecological justice 137; education 217; of ecosystems

170; law and 12; “nested” 245; “relational” 110, 113; three pillars of 241 system(s) 41, 44, 46, 47; -based approach or perspective 3, 76, 83, 97; belief 242; cultural 124; democratic 213; Earth (see Earth); ecological xiv, 76, 79, 82, 84, 104, 110, 194, 223, 224, 241; economic 122, 136, 137, 156; 240 financial 213; global 216; governance 99, 241, 243, 244, 245, 246; integration of 121; knowledge 105; legal (see legal system(s)); life support 92, 245; living 48, 140, 248; natural 51, 76; nested 99; planetary 63, 67, 68; political 213, 240, 246; regenerative economic 6; social 3, 167, 213, 246; socio-ecological 79, 82, 83, 137; socio-economic 61, 66, 123, 189, 190; -thinking 1; see also complex adaptive systems; ecosystem(s) taita 120 Tasmania 238 taxes 13, 216; carbon 183, 187; consumption 183 tectonics 122, 124–128, 130 teks 125–126, 128, 130, 131 “teleological” perspective or thinking 17, 78 temporality 64, 80, 81 tenure 81 terra nullius 79 terrorism 26, 27, 28, 30, 31, 34 text and texture 125–128 theory 6, 76, 77; of Earth jurisprudence 242; ecological law (see ecological law); economic xiv; legal xiv, 106, 120, 121, 122, 123, 124, 126; of needs (see needs); of restoration 3; of the self 120; social 123; system xiv; trusteeship 4, 147–160; see also Critical Theory; green legal theory thresholds: “capability” 139; of Earth system 67, 154, 211; ecological 11; temperature 210 tipping point(s) 5, 64, 209, 211 tobacco 35, 243 Todd, Z. 112 top-down approach(es) or systems 217, 241, 249 trade 31, 109, 142, 179, 212, 248; global 185; “justice” 185; secrets 43; wool 179 Traditional ecological knowledge (TEK) see ecological knowledge Traditional Eeyou Hunting Law 141 transdisciplinarity 78, 82

Index transition: and degrowth 122, 139; to ecological law xv, 2, 4, 5–6, 143, 159, 194, 204, 205, 234, 237, 241; to ecologically just societies 4, 135; economic 243, 245; to a healthy future 245; of industrial societies 246; to more stringent environmental regulation 80; rights of nature as transitional 91, 100; to socialism 142; of socio-economic systems 62, 70; toward sufficiency 135; to a sustainable and equitable future 209; tools of 3; transitional time 51 Transition Town movement 242 treaty(ies): with First Nations (see First Nation(s)); -making 224, 228; rights 224, 226, 227, 233; see also European Union; Outer Space Treaty trespass 157, 194, 195 tribes: lands of 5, 225; laws of 5, 226; sovereignty of 225, 226; in the United States 199, 224–234 trusts and trusteeship 92, 147, 156, 158, 160, 195, 196; and Canadian public law and environmental governance 147–160; communal 44; Earth’s 155, 159; of global commons 154; of nature 18; Nature’s 147, 159; public (see public trust doctrine); theory (see theory) Two-Row wampum 112 uncertainty 61, 79, 80, 128; and ecological restoration 83; irreducible 3; ontological 131; scientific 66, 67 uniformity 84 United Kingdom 1 United Nations: Convention on the Law of the Sea 200; and education 215; General Assembly 15; Intergovernmental Conference 200; recognition of human right to water and sanitation 140; and the World Environment Organization 155 United States: Congress 40, 43, 199, 224, 225, 226, 227, 230, 233; Supreme Court 150, 195, 224, 225, 226, 227 United States Commercial Space Launch Competitive Act (“US Space Act”) of 2015 United States v. Milner 194, 204 unity of the whole 5 universe: and African views and perceptions 166, 167; appreciation of 52; connection with 40, 53, 54; ecological interdependency in 44; as a guide 242; identity 46; insight into 49; interrelated 164; orignins of 51;

267

productiveness and randomness of 51; and space ethic 3; untapped 50 urbanization 99 Utah 6, 228, 229, 232 Ute peoples 228–229, 230 utilitarianism xv, 1, 96, 106, 111, 168, 170, 171, 174 Valentine, D. 51 valuation: contingent 97; monetary 96–97; and multi-criteria decision-making 96 value(s) 26, 34, 35, 51, 155; of African forests 168–171; of all beings 48, 51, 136, 168, 198; anti-utilitarian 105; -based democracy 148; of celestial places 53; communal 44, 189; ecological 5, 26, 195, 202, 205, 226, 230, 232, 233; of ecological law xv; economic 170, 171, 195, 245; environmental 196, 226, 227; historical 48; human; incommensurate 96; of individuals 45; of industrial capitalism 105; instrumental 18; intrinsic xiv, 18, 49, 104, 168; Inuit 140; -led approaches to environmental management or restoration 82, 85; landscape 77, 78; market 27; modern 170, 223; monetary 96; natural 51; of natural resources 153; of nonhumans 47, 122; non-instrumental 34; norms and 123; and power 212; public 195; of robust democratic citizenship 34; scientific 48, 77; and sentient beings 47, 52; spiritual or cultural 78, 79, 164, 165, 174, 232; of systems 48; and taboos 166; tribal 224, 227, 230, 231, 232, 233, 234; utilitarian 168; Western xiv, 109 Vermont Law Review 203, 204 vested interests 242, 243 voluntary measures 13 Warren, K. 52 Washington, DC 233 Washington state 111, 194 waste 157, 211; areas 43; disposal 172, 227; duty against 153; hazardous 150; of wildlife 110, 141 water(s) 18, 35, 79, 112, 142, 187, 211, 225; adequate 138; on asteroids 42, 52; and climate change 218; coastal 197; consumption 143, 248; cycles 247; groundwater 150; marine 66; navigable 150, 151; off-reservation 227; pollution of 164; private ownership of 154;

268

Index

quality 84, 169, 199, 210, 223, 227; right to 140, 141; security 77; spirits 170; and taboos 166, 167; tribal use of 224; and trusts 151; see also Clean Water Act; Safe Drinking Water Act watershed 184, 233, 246 Watson, I. 239 way of life 35, 120, 121, 156 wealth 47, 155, 186, 187, 243; accumulation 137, 188; concentrations of 43; disparities 43; limits on 137; recirculation of 188, 190 weaving 121, 125, 126 web of life 120, 125, 129, 131, 172, 173 Westerlund, S. 12 Western Australia 238 Western culture and beliefs xiv, 44, 170; see also value(s); worldview(s) Whanganui Iwi 92 Whanganui River 91, 92 Whyte, K. 107

Wild Law 1, 104, 106, 114, 203 wilderness 80, 104, 106, 183 Wood, M. C. 147 worker(s) 7, 26, 186, 188 world(s) 47, 126, 127, 167; material 167; more-than-human 5, 209; natural 4, 51, 81, 82, 85, 113, 119, 184, 185, 189, 212, 230, 241, 242, 246; spirit 167 World Charter for Nature 15 World Environment Organization 155 World Trade Organization 155, 185, 186 worldview(s) 5, 54, 79, 98, 100, 170, 242; anthropocentric 2, 90, 91, 93, 95, 96, 98; cultural 245; ecocentric 98, 99, 100; economized 2; human-inclusive ecocentric 90; Indigenous 53, 92, 93, 95, 99; Māori 91; modern scientific 45 Wright, E.O. 249 Zimbabwe 164, 166 Zuni peoples 229, 230