You did not know ‘Freya’ as your name of course; humans choose that name for you. Whoever thought of it, the name that was given to you was of the most renowned of the old Norse goddesses – Freya. With superhuman strength and endurance, she was the goddess of love, fertility and beauty and also of sorcery, battle and death. Quite a remit, even for a superhuman. This name was given to you long before you reached Norwegian waters. How ironic and sad then that your life was taken so needlessly in Norway.

What did you do wrong to deserve your life to be cut short like this? Your only apparent ‘crime’ was not to be a member of the human species. We would not treat one of our own kind in this shockingly barbaric way. Certainly not in a so called ‘civilised’ country like Norway, at least. Your life did not matter, according to Norway’s fisheries ministry. You were in the way, causing damage to people’s property (some small boats sank under your 600kg weight, as you tried to find somewhere to lie down out of the water). You had no right to be there, even your fundamental right to exist is not recognised in law, for you were not human.

You never hurt a soul, even though people threw things at you and got much closer to you than any sensible person should. In other countries you visited, people were kind enough to provide you with a floating pontoon to make your stay more comfortable. It was not your fault that some of the visitors to the Oslofjord were thoughtless or thrill-seeking or desperate for selfies with you, and yet it was you who paid the ultimate price. Apparently, it was considered a problem that you would pop up here and there in the Oslofjord, occasionally alongside people swimming near the beach. But if people knew that a walrus was in the area, and apparently they had been warned of this, WHY were people swimming there in the first place? The sea is YOUR habitat after all, not theirs. Can we humans not put our ‘right to swim’ on hold for a brief period of time to allow another being some space? And there are many other places in Norway for humans to swim…

We can never know what went on in your mind of course, but we know that walruses are generally highly social mammals, possibly the most cognitively and socially intelligent among the pinnipeds. Wildlife experts were concerned that you were not getting enough sleep in the Oslofjord, due to the number of humans that were disturbing you on a daily basis. You needed up to 20 hours sleep a day. So why did you stay there? You could easily have moved on to avoid human interaction, and yet you stayed.

Is it too far-fetched to imagine that you might have been craving social contact with other mammals, being so far from your own kind? Whatever the reason, human thoughtlessness and recklessness was your undoing.

Most likely, given the chance, you would have continued with your tour of European waters. It is likely that you came from somewhere in Svalbard or possibly East Greenland, and over the last 10 months you swam to The Netherlands, then to Denmark, Sweden and on to Northumberland and the Shetland Islands in the UK and finally – fatally – you swam to Norway, spending a month in the Oslofjord, until your life was cut short by a human being with a gun.

Much thought was given to your predicament by the Norwegian authorities apparently. Experts worried about the risk to human life, even though you never hurt a soul, and as Professor Fern Wickson of the Arctic University of Norway put it, “The risk was potential rather than demonstrated” and no greater a level of risk than “we regularly tolerate in our society and daily lives”. We take a risk when we ride a bicycle, travel in a car, fly in a plane. Swimming in the sea is not without a level of risk. We cannot eradicate all risk from our lives – not even with our obsessive Health & Safety culture. How can it be right to destroy a life because that being might cause harm to someone or something?

Many have mourned your death Freya. Much of what is wrong with humankind’s inept way of relating to other species is illustrated by your untimely death at the hands of merciless humans. “The public safety is what has been prioritised. Animal welfare is also a priority, but human life and health come first”, said the head of Norway’s Fisheries Directorate, Frank Bakke-Jensen. So prioritising us means that you had to die? What an inept and cruel way to resolve a situation that could have been solved without your life being taken.

What happened to you is in sharp contrast to the demise of the ailing, malnourished beluga whale who died just 4 days before you, after venturing into the River Seine. On 10th August 2022, the beluga was carefully lifted out of the river in a last chance rescue attempt to move it to a salt water haven for observation and further care and treatment. The beluga was 400kg under its normal weight of around 1200kg and would not eat, yet still, every effort was made to save it. Meanwhile you – young, healthy and curious – were denied the chance to live out your 40+ year lifespan. Therein lies the polarity of the human psyche – some of us willing to do whatever it takes to rescue members of other species, while others see non-human life as totally expendable. As someone posted in a tweet about Freya, although they found it sad that she was killed, her death was OK really, because her life was not consequential, as her species is not endangered. Is that to be the yardstick by which we measure the value of a life?

As People for the Ethical Treatment of Animals (PETA) put it, “More walruses like Freya and other species whose homes are shrinking due to the climate catastrophe and habitat destruction will likely continue to stray farther from their natural homes and into closer proximity to humans. Animals aren’t selfie props, and their need for space needs to be respected.”

One of the fundamental rights in the Universal Declaration of Human Rights is the Right to Life. Article 3 says “We all have the right to life, and to live in freedom and safety”. Had Freya’s right to life been properly considered, inevitably a different course of action would have been chosen – crowd control measures would have been put in place, people would have been warned off swimming near her, threatened with fines for getting too close to her. A ‘guardian ad litem’ could have been appointed to represent her best interests, as would be the case with a human child or an adult who lacks capacity. What would it take for humans to extend this deeply valued human right – the fundamental right to exist – to other species?

Rest in peace Freya.

Allegedly an ‘annual cultural ritual’, this appears to be little more than men getting mindless kicks out of killing innocent, defenceless animals in the name of ‘proving that you are a man’. How can sticking a knife into an animal that has no means to defend itself in any way be considered ‘manly’? Sickening beyond words is what it is.

Newsweek first reported this tragic event on 14th September. The report included a description of the horror of the massacre from Sea Shepherd volunteer, Samuel Rostøl. It is harrowing to watch the videos that Mr Rostøl courageously filmed to show the world the grim reality of what was happening in the Faroe Islands.

Why does the Right to have Rights Stop at Human Beings?

How is it that dolphins and whales do not have any legal rights? A right to not be murdered, for example? They exist, just like we do. And yet we do not (yet) recognise in law their right to life, their right to thrive in their natural habitat, their right to be left in peace. WDC (Whale & Dolphin Conservation) reports that the Atlantic White-Sided Dolphin is a sociable species, usually found in groups of between 2 – 50 individuals, but also coming together to form large pods of hundreds or even thousands of individuals. They are also sometimes seen in the company of much larger species, such as baleen whales. They are known as ‘co-operative feeders’, meaning that they work together as a group to herd fish into large groupings where they can be picked off more easily.

Sadly for the dolphins who perished on Sunday 12th September in the Faroe Islands, it was the ability of humans to co-operate that led to the dolphins being herded through the sea for many kilometres into a shallow bay. This was done using a ‘wall of sound’ created by the engines of a line of boats. 1,428 individuals – gregarious, social, family groups of dolphins – totally unable to defend themselves against the attack, were then murdered in cold blood with knives. Their bodies were piled high, awaiting disposal.

It was instructive to read how people commented on the slaughter. Many in the Faroe Islands found the actions of this small group of men abhorrent, excessive. But the comments said that the slaughter was excessive because not all of the flesh from these dead dolphins could be consumed. A lot of it would go to waste. A utilitarian response. I have not read anything suggesting that there was any sense that these poor dolphins had a right to a peaceful existence in their habitat… Is this asking too much?

Rights for all Forms of Life as the Global Norm

The Universal Declaration of the Rights of Mother Earth is a civil society-led initiative that considers that “Mother Earth and all beings are entitled to all the inherent rights recognized in this Declaration without distinction of any kind, such as may be made between organic and inorganic beings, species, origin, use to human beings, or any other status.” If this declaration were law, dolphins, whales and all beings would have rights. These rights would be specific to the needs of their species and appropriate for their role and function within their communities.

Furthermore, the rights of each being under the Declaration are limited by the rights of other beings. Any conflict between their rights would be resolved in a way that maintains the integrity, balance and health of Mother Earth.

So in the case of the white-sided dolphins who inhabit the North Atlantic, their right to life and to exist, their right to be respected and their right to wellbeing and to live free from torture or cruel treatment by human beings would prevail over any assumed human ‘right’ to kill them.

When you think about other species from this perspective, the role and place of humans changes. We are part of an “indivisible, living community of interrelated and interdependent beings with a common destiny” as the Declaration states.

Stopping the Slaughter of Innocents and Making Rights of Nature a Reality

How do we bring this change of worldview into being, legally speaking? Here are two initiatives that you may wish to support.

Rights of Mother Earth has a petition aimed at gathering 1 million signatures by 2022. The petition calls on the UN to adopt a Universal Declaration of the Rights of Mother Earth. This would be an important first step. Ideally nation states would also adopt similar laws, so that the rights would be enforceable at national level.

Meanwhile, as an important immediate step, over 627,000 people have signed Blue Planet Society’s petition to end dolphin and whale hunting in the Faroe Islands and Japan. They aim to collect 1 million signatures before submitting the petition to the Prime Ministers of each country.

If you feel moved by reading this post, please add your name to both petitions and pass them on.

The international panel of judges of the Permanent Peoples’ Tribunal on Human Rights, Fracking and Climate Change has issued its final Advisory Opinion after 10 months of deliberation. They have recommended a worldwide ban on unconventional oil and gas extraction. This would include a ban on hydraulic fracturing (or “fracking”), underground coal gasification, tar sands and oil shale extraction, among other extreme oil and gas extraction processes.

In the judges’ opinion: “From many jurisdictions around the globe, the evidence is overwhelming: first, Unconventional Oil and Gas Extraction (“UOGE”) is a major contributor to the crisis the world is facing at the “climate crossroads”; second, the dangers of UOGE to the rights of people, communities and nature are inherent in the industry, and such dangers all too often result in serious, even catastrophic violations of those rights. Where UOGE operations impact, local ecosystems are destroyed and that of the planet comes under threat… Thus the industry has failed to fulfil its legal and moral obligations”.

The judges went on to say that “The evidence also shows that governments have, in general, failed in their responsibility to regulate the industry so as to protect people, communities and nature. In addition, they have failed to act promptly and effectively to the dangers of climate change that fracking represents.”

In terms of nature’s rights, the judges have made various recommendations, including the following:

• “That the Universal Declaration of the Rights of Mother Earth (UDRME) be adopted as soon as possible by the United Nations.” (Recommendation 1)
• “That ecocide be given similar recognition as genocide in international law through a Universal Declaration from the United Nations.” (Recommendation 8).

Also of interest to anyone who is actively defending Mother Earth is the judges’ 3rd recommendation:

• “That an International Working Group (IWG) be established to develop People’s Earth Jurisprudence and publish reports which can be used by legislatures and courts around the world. The IWG should include in its work an analysis and justification of the right to use civil disobedience including forcible action where necessary and morally justified to defend Mother Earth”.

Background to the Case on Nature’s Rights: The PPT is an international opinion tribunal that is independent of state authorities. Until now, it has been solely a Human Rights Tribunal, but for the first time since its inception in 1979, the PPT judges were asked for their opinion on the impact of fracking and climate change on nature’s rights. As Co-counsel for Nature’s Rights, Lisa Mead of the Earth Law Alliance and Michelle Maloney of the Australian Earth Laws Alliance made the case for nature by invoking the Universal Declaration of the Rights of Mother Earth which does not (yet) have the force of law. The Earth Law Alliance also co-ordinated a legal team acting for Nature’s Rights, which called various witnesses and experts to testify. The evidence was presented during 4 hours of oral pleadings, which formed part of a total of 5 days of online oral pleadings conducted in May 2018 via Zoom. The oral pleadings also bore witness to the myriad negative impacts of UOGE on human health. In advance of the online hearings, extensive written submissions were made, incorporating a raft of evidence of harms done to nature by UOGE in various countries.

The case for nature was built on the premise that any future governance system must recognize the rights of all life to exist, thrive, evolve and regenerate, and that intrinsic rights exist where life and life-supporting systems exist. The underlying basis for this is the key principle of Earth Jurisprudence that the Universe is the primary law-giver, not humans. The case was made, for example, that there have been violations of the rights of land and its sub-surface, where seismic activity and water pollution has occurred as a result of the sub-surface injection of fracking fluids. This includes the violation of the right to be free from contamination, pollution and toxic or radioactive waste; the right to maintain its identity and integrity as a distinct, self-regulating and interrelated being; and the right to integral health. We also made the case for the rights of animals and birds, plants, forests and air.

The PPT’s judgement has moral, if not legal, force. The documents, oral testimonies, official transcripts and of course the final Advisory Opinion of the PPT are all available to activists and members of the public who wish to challenge the UOGE industry via the Tribunal on Fracking website.

During the forthcoming Tribunal on Human Rights, Fracking and Climate Change, the Tribunal judges are being asked to consider the following question:-

“What is the extent of responsibility and liability of States and non-state actors, both legal and moral, for violations of the rights of nature related to environmental and climate harm caused by these unconventional oil and gas extraction techniques?”

In March 2018, the Earth Law Alliance’s Director, Lisa Mead, LL.M. and Dr. Michelle Maloney, Convenor of the Australian Earth Laws Alliance, made a formal submission to the PPT advocating for nature’s rights. The submission included evidence of harm caused to nature by unconventional oil and gas extraction. It also provided information about countries that have already banned fracking.

The submission argues that nature’s rights are being seriously violated by unconventional oil and gas extraction.

It details a number of serious infringements of the rights of nature, including:-

• violations of the rights of the climate system as a whole,
• violations of the rights of rivers, waterways and aquifers,
• violations of the land and its sub-surface, and
• violations of the rights of animals and plants to exist, thrive and evolve.

The submission draws on the Universal Declaration of the Rights of Mother Earth. It articulates the rights that must be recognised, in order for humans to heal their relationship with Earth, and for all of nature to survive and thrive.

In support of the case for nature’s rights to be recognised and upheld, the Center for Earth Jurisprudence submitted an amicus curiae brief to the PPT. The brief highlighted the indivisible connection between human rights and rights of the Earth, and detailed why they must be considered together. The Community Environmental Legal Defense Fund (CELDF) also submitted an amicus curiae brief. It demonstrates the negative ways in which unconventional oil and gas extraction is impacting air and water quality, harming nature and wildlife, and accelerating climate change. CELDF’s brief also sets out arguments demonstrating that from a scientific, legal, moral, and spiritual perspective, both state and non-state actors are responsible, and therefore liable, for environmental and climate harm caused by unconventional oil and gas extraction.

The formal hearings of the PPT on Human Rights, Fracking and Climate Change will take place entirely online from 14-18 May 2018. Lawyers and witnesses from many countries will provide oral testimony relating to violations of both human rights and nature’s rights. The live streaming will be open to the public, with details to be posted just prior to the event on the website of the PPT on Human Rights, Fracking and Climate Change.

• Click here for Formal Submission of Petitioners Representing Nature’s Rights
• Click here for Evidence of Environmental and Climate Harm Caused by Unconventional Oil and Gas Extraction

At the time of writing this, Dr Olivia Woolley was a lecturer in law at the University of Aberdeen [As at April 2022, Dr Woolley is based at the University of Durham]. I interviewed her in late November 2014 to find out more about her book Ecological Governance and her motivation for writing it. Dr Woolley shared with me that having worked as a solicitor in dispute resolution for 10 years, she decided to shift the focus of her work. Consequently, in 2007 she began studying for a PhD in Law at University College London, initially investigating the legal framework within which offshore wind energy developments operate. Her aim at that point was to enhance understanding of the interaction between the environmental law framework designed to restore the condition of marine ecosystems in UK waters, and the UK’s programme of offshore wind farm construction. In studying this, she became aware of the practical challenges of governing sea uses with a view to preventing ecological harm. Consequently, her doctoral studies ended up as a much broader study of the challenge of creating effective legal protection of ecosystems in general.

Dr Woolley credits her awakening to the wider issues of ecological degradation, and the enormous threat that this poses to humankind and other species, to the influence of her doctoral supervisors at UCL, Jane Holder and Maria Lee, and to feedback on her early work from Joanne Scott, also an environmental law academic at UCL. She refers to the ‘snowball’ effect of having her eyes opened to a world of law that she was not previously very aware of. She told me, “I had a fairly ‘nuts and bolts’ sense of the way in which offshore wind developments conflict with other sea uses and rules for marine environmental protection, and my broad idea was to look at how law can be used to try to manage those conflicts. However, working with environmental lawyers made me conscious that this was not just some practical, easily solved conflict at the environmental level. Developing solutions and approaches to balance ecological protection with offshore wind energy development was much more challenging than that. I realized that I needed to understand the science, to understand how marine ecosystems work and that I would need to think through the ethical arguments as well – why protect marine ecosystems? I mean, why would you prioritise that in some circumstances? I needed to have worked through those aspects in order to develop a law that would achieve the ends that I had in mind.”

Thinking Like an Ecosystem

So as a vital precursor to creating a legislative framework that operates to support healthy ecosystems, Dr Woolley first examines our current understanding of how ecosystems function. She then considers what conclusions we can draw from this knowledge, in order to make decisions at all levels of government relating to human activities that impact upon ecosystems in some way.

The book takes global ecological degradation as its starting point – as the problem that we need to address – and then, rather than reviewing the current legal position (since existing legal approaches have largely failed to stem the rate and extent of the degradation), the book begins by looking at our current scientific understanding of how ecosystems work.

A key point made by Dr Woolley is that when it comes to creating legislation to address the protection of dynamic and barely predictable ecosystems, which, in general are very poorly understood, the legal thinking of past generations is wholly unsuitable. She says “My general motivation is to solve problems. In my legal work I am less interested in analyzing the existing legal framework and making minor critiques of them than in looking at the challenges that confront the world and thinking about what kind of approaches are required to address them. With the ecological work, I am motivated by the serious concern that ecological degradation presents. It is a disastrous situation. It’s something that everybody should be motivated to address, not just academic lawyers. So I think it’s enormously important work, and having developed some ideas on this I am motivated to develop them further and to publicise them and get those ideas out there to people who may actually be able to do something about the situation.”

As our scientific knowledge has increased, theories have changed as to exactly how ecosystems function, and although imperfect, through research we have a certain level of understanding, but there is clearly a lot that we still do not know. Dr Woolley asserts that given our imperfect understanding of how ecosystems function, this requires us to apply the precautionary principle much more rigorously than we have done to date.  She argues that we should adopt a normative precautionary approach.  This means that a precautionary approach should be employed as a matter of course in environmental decision-making to reflect humanity’s profound uncertainty about the combined ecological effects of its actions.

The Vital Importance of Resilience

She says, “My focus is on resilience – the resilience of ecosystems particularly and trying to preserve that as the measure that is regarded as the key to their functionality. From what I have read of the science, I am conscious of our very poor understanding of how ecosystems function, of what makes them resilient and how resilience is lost. I question the sort of legal approaches that we tend to use now, which operate on the aspiration that we will acquire ‘perfect science’ at some point in time and hence be able to make sharp distinctions between what activities are acceptable and those which are not feasible, ecologically speaking.

Ecosystems are dynamic, so resilience is constantly changing, and therefore we cannot use the current expression of resilience as a benchmark against which to judge whether activities are acceptable. Also, resilience is a relative concept. It is relative to the challenges that ecosystems confront. An ecosystem that seems in good shape today might not be so in 10 years time, particularly with a changing climate. Add to this our ignorance as to how our activities combine to undermine the resilience of ecosystems. Furthermore, even if we did understand what factors made an ecosystem resilient at a particular point in time, I question whether this would be particularly useful knowledge for governing future activities, in view of the dynamism of ecosystems.“

From this starting point, Dr Woolley describes how we really don’t know where the cliff edge is or how close we are to it, in terms of the tipping point for ecosystem change, so consequently we are floundering around in a state of uncertainty. She then argues eloquently and logically that we need to adopt a different approach to governing our activities, an approach that reflects our ignorance of ecosystems in general, of resilience in particular and also taking into account their constantly changing nature.

Ethical Foundations

In terms of ethical considerations, of particular interest is that Dr Woolley argues that we do not need to agree that nature has intrinsic value in order to move forward with this kind of ecological governance. She says, “Even from an anthropocentric perspective, those with awareness of the reality of our situation should be able to recognize the necessity of the approach that I am arguing for. In other words, it is ethically necessary to alter our relationship with the natural world in this way. This is part of the foundation of my arguments. I am not saying that the position I adopt is logically impeccable. Rather, I have sought to set out a coherent set of ethical principles, which challenge the long-standing perspective that humans have the right to dominate nature. Instead of the ecocentric approach, in which we need to find an intrinsic value in nature, I adopt an ethical approach to which I hope many people will be able to relate. I think it is possible to recognize that a change in our approach to governance is essential, without having to address the question whether individual animals, species, ecosystems or the entire biosphere can be said to have value in themselves. I believe that by adopting a more ecological mindset, even from an anthropocentric perspective you may well end up at the same point anyway. So ecocentrism does not need to be your starting point, I would say.”

A New Legal Framework for Reducing Ecological Pressures

In proposing a legal framework based on a normative precautionary approach, Dr Woolley argues that traditional legal approaches try to regulate individual activities or groups of activities based on firm knowledge of environmental effects.  This does not reflect the reality of the whole situation and is not useful for protecting ecosystems in view of difficulties with establishing how the effects of human activities combine to undermine ecosystem functionality.   She argues that there needs to be a legal framework that makes reducing pressure on ecosystems its principle objective, with policy-making and decision-making based on what we choose to do as a society.

What is heartening about Dr Woolley’s approach is that she does not shy away from addressing the critical issues that so often get bypassed by politicians and policymakers. For example, how do we tackle rampant over-consumption and the unfettered economic growth that continues to damage ecosystems? In practice of course, politicians would rather avoid the conflict and political fallout that would almost inevitably emerge from placing constraints on certain commercial activity and upon human consumption and choice. But as Dr Woolley points out, we can no longer afford the luxury of the ‘head in the sand’ approach to these issues, given the rate of ecological degradation that continues under the existing regime of environmental law and policy.

The legal framework would be designed to achieve this through two approaches, both of which are discussed in the book. The first half looks at identifying and preferring policy options that are assessed to present the least threat of ecological harm and at how that assessment process would be conducted. In some settings, certain categories of activities that present too great a threat of ecological harm would be ruled out.

The second half of the book looks at the kind of arrangements that would need to be introduced in order to bring about an ecologically sustainable approach to governing our activities. The relationships between different levels of government are considered, in terms of who will do what in figuring out how this approach would be delivered in a way that would have the maximum chance of engendering popular support.

General Applicability

Dr Woolley notes that the set of principles for ecological governance offered by the book could in principle be applied in any country. So, for example, although there is a chapter critiquing existing UK planning law, the underlying principles could be embraced by any state wanting to govern ecologically. Dr Woolley says “It’s all based on my understanding of the science and the ethical arguments, which are not unique to one country. So it is possible to base generalized principles upon them, which you could then adapt for particular situations.”

Dr Woolley’s book is clearly the result of deep thought and consideration of what is required for a society to operate within the limits of the ecosystems on which it depends. Given that it offers us a fairly detailed proposal setting out how things could be if we took the health of ecosystems seriously, Ecological Governance: Reappraising Law’s Role in Ecosystem Functionality is worthy of deep consideration by anyone with an interest in shaping future law and policy.

Photo: Aberdeen Harbour, courtesy of www.iStockphoto.com

As Helena Norberg-Hodge points out in her influential film, The Economics of Happiness, which sets the record straight on many environmental and economic myths, “We are facing an ecological crisis, an economic crisis and a crisis of the human spirit”. And in his recent essay, A New Story for a New Economy, David Korten talks about the three familiar creation stories that have guided us to where we are now, and which, as we enter the 21st century, have proven to be inadequate to the task. He talks in terms that will be familiar to many of you by now, of the need for a new “Living Universe” story to replace the “Distant Patriarch”, “Grand Machine” and “Mystical Unity” stories which have governed our understanding of the world to date. What if we were to live by the “Original Instructions”, for example by reflecting in the design of our social and economic systems the underlying principles uncovered by systems biologists – “that the healthy function of any living system depends on highly complex and sophisticated forms of collaboration. Most all living organisms exist, thrive, and coevolve only within living communities engaged in continuous synergistic sharing and exchange that, from a big-picture perspective, is fundamentally cooperative”. Meanwhile, our economic system and the law and governance systems that underpin it continue to support competitive practices and forms of corporate ownership that benefit the few rather than the many. Together with an underlying assumption of unfettered growth on a finite planet this forms the basic, state-sanctioned “story” for ensuring human progress… Not very smart.

It is clear that throughout time humans have been guided by stories. Our stories shape us, inspire us and bring meaning to our lives. What happens when it becomes clear that a prevailing story is no longer serving us? Simple. We write a new story! One that fits the full knowledge and understanding of our time. No pressure then! So what IS the new story for law and governance?

In just under a month, a catalysing event will take place at the Findhorn Foundation in Scotland – the New Story Summit, at which will gather 350 bright and committed individuals from around the world. In the organisers’ own words: “The Summit is designed to support the emergence of a coherent new story for humanity and to produce practical, collaborative ways to live this new story”. So what is the coherent story for law and governance, and how do our new stories for law and governance meld with the new stories emerging in ecology, economy, politics, culture, community building… In short, the new story of human life on Earth?

It seems increasingly obvious that a key element of this new story is the need to embrace a paradigm of unity rather than separation, in other words – the way that spiritual teachers have drawn attention to for millenia. This will undoubtedly require a growing level of spiritual maturity, as we are called to embrace a culture of “us” rather than “I”, as we live and breathe the gift that is life.

And yet we cannot ignore the “I”. We are all conditioned by our experiences of the social and cultural systems that we are born into, deeply flawed as they may currently be, and epigenetics shows us that we carry information and energy from our ancestors in ways that we do not yet fully understand. That each of us needs to engage in a personal journey of healing – of embracing all of who we are (warts and all) – is beyond doubt. This is because every time we suppress a feeling or instinct in ourselves for whatever reason, we will in turn experience these suppressed feelings as faults or “wrongness” in others – and that leads to a culture of blame and misunderstanding.

From my lived experience of human systems I believe that if we ignore the “I” – for example by thinking that the immense and urgent tasks facing humanity make it OK to marginalise the human relationships that confront us every day – we do this ultimately at the expense of the “we”. So for me, part of the New Story of Law is a re-imagining of lawyers – as the healers of the woes of their community. Lawyers need to have the maturity to show up as complete human beings, that is, mature enough to deal not only with facts and procedure, but also with the difficult emotions that arise during conflict and disagreement. Their role then is to facilitate resolution, so that we can move beyond the adversarial system that only adds petrol to the fire.

Of course, many Earth Law Alliance members are already engaged in developing and advocating for new stories of law and governance. Almost inevitably, by virtue of choosing a particular area to focus on, it is easy for us to become entrenched in our own “legal silos”, thinking that “my way is the right way” or the only way and thus, we end up creating more of the separation that we are seeking to heal.

So one of the main purposes of the Earth Law Alliance is to create a forum for alternative ideas to be acknowledged, discussed and developed. We have members who speak out for the recognition of the inherent rights of nature, as recognised in the Universal Declaration of the Rights of Mother Earth and as advocated by the Global Alliance for the Rights of Nature; members who want stronger laws to prevent destruction and damage to the Earth and all its inhabitants, such as we see in the Eradicating Ecocide initiative. Some members are developing methodologies and practical tools for ecological governance, such as Prof Klaus Bosselmann’s work on Global Ecological Integrity. There is also the Universal Covenant Affirming a Human Right to Commons and Rights-based Governance of Earth’s Natural Wealth and Resources, as proposed by Burns H Weston and David Bollier in their book Green Governance, and Community Ecological Governance methodologies developed by Gaia Foundation. In the wider field of law and governance, we see alternative means of resolving disputes, such as in the Restorative Justice movement, new ways of practising law, as proposed and developed by the Integrative Law Movement, which advocates for lawyers to be healers and peacemakers, as well as best practice policies being advocated by the World Future Council and its Global Policy Action Plan, which offers best policy solutions for a sustainable future. So many compelling, potentially world-changing initiatives are springing forth – the ones I have named above are but a few.

So what do we need to do to redress the current profound imbalance between humankind and the rest of nature? Is it to overturn, through new laws and governance systems, the sense of entitlement that corporations assume when they treat the Earth as a source of endless “natural resources” for the fabrication of a multitude of products that humans don’t really need? Do we need to transcend our human-made concept of the supremacy of the nation state, in order to find an equitable and climate-safe way forward as we face a future of dwindling energy from fossil fuels? Do we need to reimagine the concept of human “ownership” of land? Establish ways to ensure that the integrity of ecosystems and other species are considered every time we make decisions that impact Earth? Do we need to rethink how we resolve disputes? Or how we treat those who transgress? As a species, we have made so many assumptions and collective agreements that do not serve the whole… What is the best way forward?

With gratitude and warm regards,

Lisa Mead

Executive Director, Earth Law Alliance

The photograph above, reproduced with kind permission of Amos Chapple, shows a bridge made from living rubber trees, in the state of Meghalaya, India. To see more of Amos Chapple’s beautiful “living bridge” photographs, click here.

One of the key aims of the Tribunal was to show how the framework of existing law is failing to protect the natural world and also the human defenders of Mother Earth. It explores how things could look if Rights of Nature were enshrined in law. The Rights of Nature movement proposes a new jurisprudence that recognises the inherent right of nature to exist, persist, evolve and regenerate.

Holding the Tribunal in Ecuador showed solidarity for a country that is currently living with a government more committed to exploiting the natural abundance of the country for financial profit than to honouring nature’s rights, or the needs of all people to a healthy,  unpolluted environment. This is something that Ecuador has in common with many other countries of course. However, the government of Ecuador is choosing this stance in spite of the fact that since 2008 Ecuador has recognised the Rights of Nature in its constitution. This demonstrates that although it is a good start, it is not nearly enough just to enshrine Rights of Nature in a country’s constitution. Rights of Nature principles need to be adopted at all levels of law-making in order to be truly meaningful, and of course more fundamentally, we are talking about a shift in how we view our relationship with the Earth, rather than just about changing laws.

The Tribunal was attended by several hundred people, with participants from Argentina, Australia, Bolivia, Canada, Ecuador, India, Romania, South Africa, Spain, Switzerland, the UK and the USA. The cases were presented and adjudicated in Spanish and English, with simultaneous translation available in both languages.

In his opening statement to the Tribunal, the Prosecutor for the Earth, Ramiro Avila, a law lecturer at Universidad Andina Simón Bolivar in Quito, addressed the hearing as follows (translated from his original Spanish) “We the people assume the authority to conduct an Ethics Tribunal for the Rights of Nature. We will investigate cases of environmental destruction, which violate the Rights of Nature. We plan for this to be a Permanent Tribunal for the Rights of Nature. The panel of judges will review nine cases today and decide whether or not they should be referred to a full hearing later in the year”.

In her opening address, Vandana Shiva stated that this “Seed Tribunal” on the violation of the Rights of Nature is a very important moment in the evolution of our species. She noted that respecting and living in true relationship with Mother Earth and Nature had been the norm for most of humanity’s time on Earth. It is only very recently that we have started to violate the Rights of Mother Earth and of Nature, and the rights of people who honour and defend these fundamental rights.

She went on to say that this tribunal offers us an opportunity to change our path and that the current path is predictably the path to human extinction. This requires shifts at multiple levels and is a chance to reclaim our humanity. Today corporations are deemed to be “persons” and are granted rights to exploit and destroy, and are often given greater rights than individuals. She notes that Gaia does not currently have any kind of “personhood” in law. Nature is treated as property. Dr Shiva also noted that we are 100 years too late in recognizing that the best of science is not mechanistic, is not about separation. She pointed out that this is what quantum physics teaches us, what ecology teaches us – everything is interconnected.

Dr Shiva ended her opening address by saying “Our very breath, our very life is the pulse of the Earth. We have managed to create distortions of the ideas of wealth. The state of wellbeing is the true meaning of wealth. It has been distorted to mean financial profit. The movement to establish the Rights of Nature allows us to redefine ourselves.”

The Prosecutor for the Earth then explained the reason for the Tribunal and why these cases are being submitted now.  He stated the following as the reasons for the Tribunal:

• Nature has rights. The ancient wisdom of indigenous peoples recognises Rights of Nature. There is an international instrument which recognizes this – The Universal Declaration of the Rights of Mother Earth. The Ecuadorian constitution also recognises this (Articles 71-74). These form the legal foundation upon which the cases are being heard;
• Systematic violations of Mother Earth are occurring; and
• Many humans still believe that they are superior to nature.

Mr Avila then said that because nature has rights, nature must have access to truth, justice and legal remedies. He said that the prosecution believed that in the cases to be presented, both the state and the private sector have violated the Rights of Nature, that ecocides are occurring and that the people who are defending the Rights of Nature are being persecuted.

Expert Witnesses

Before the cases were heard, the Prosecutor for the Earth invited expert witness testimonies on the critical importance of the Rights of Nature. The expert witnesses called were Casey Camp-Horinek, an indigenous rights activist and environmentalist of the Ponca Tribe of Oklahoma, USA and Patricia Gualinga, Sarayaku Women’s leader of the Kichwa People of the Ecuadorian Amazon.

The expert witnesses spoke of the environmental devastation that had taken place in their own communities, and of the importance of creating systems that reflect their belief in the balance of all things. Casey Camp-Horinek said, “I would remind you of a very simple thing. If you drank water this morning, or liquid, if you ate of the wooded nations or the four legs, if you breathed, if your body became warm from the fires of the Earth, then you must recognise and understand that there is no separation between humans and Earth, and all that are relatives of Earth in the cosmos; because you live in relationship with Earth, as a result of being one with her and there is no separation.“

In explaining the relationship between indigenous peoples and Mother Earth, Patricia Gualinga pointed out that it is a relationship of balance and of intimacy and respect. She noted that we cannot treat Mother Earth as if we own her, due to the existence of other beings. Moreover, we cannot go against Mother Earth and generate imbalance. She explained that we commit an error if we think that the destruction of a habitat only affects that habitat – it affects the whole Earth and that this is why there are so many sicknesses now. In closing, she said that Mother Earth is equivalent to Pachamama, but pachamama is more – it is life itself. If we destroy Pachamama we destroy ourselves. Pachamama is our medicine.

The Cases

The Tribunal went on to hear nine cases of environmental and ecosystem destruction from around the world, in order to establish whether there is a case to answer in terms of the violation of the Rights of Nature. The cases were:

1. BP/Deep Water Horizon, Gulf of Mexico, presented by Esperanza Martínez from Ecuador (video in Spanish, with case review, case presentation slides and the Tribunals findings in English)

2. Hydraulic Fracturing (Fracking), presented by Shannon Biggs from the United States (video in English, plus video translation in Spanish and written case study and slides in English)

3. Chevron/Texaco Case, Ecuador, presented by Julio Prieto from Ecuador

4. Yasuní-ITT, Ecuador, presented by Carlos Larrea from Ecuador (video in Spanish with case notes in English)

5. Great Barrier Reef, Australia, presented by Michelle Maloney from Australia (case notes and slides in English)

6. Condor Mirador Mining, Ecuador, presented by Nathaly Yépez, Ecuador (video in Spanish, case notes and slides in English)

7. Genetically Modified Organisms (GMOs),presented by Elizabeth Bravo, Ecuador (English and Spanish case notes and slides)

8. False Solutions to Climate Change, presented by Pablo Solón, Bolivia (video in Spanish, case notes and slides in English and Spanish)

9. Defenders of Nature and Mother Earth, presented by Carlos Pérez Guartambel, President of the Confederation of Peoples of Kichwa Nationality in Ecuador, provided testimony (video in Spanish) giving testimony regarding his recent actions in Ecuador as a Defender of Nature, the reasons for his actions and their consequences.

The Prosecutor for the Earth then summed up the nine cases (video in Spanish) and called on the judges to admit all of the cases. The panel of judges then reported back on their findings, considering each case in turn, as follows:

• Judgement on the 1st case: BP/Deep Water Horizon, Gulf of Mexico (Judge: Atossa Soltani)
• Judgement on the 2nd case: Hydraulic Fracturing (Fracking) (Judge: Tantoo Cardinal)
• Judgement on the 3rd case: Chevron/Texaco Case, Ecuador (Judge: Julio César Trujillo)
• Judgement on the 4th case: Yasuní-ITT, Ecuador (Judge: Alberto Acosta)
• Judgement on the 5th case: Great Barrier Reef, Australia (Judge: Cormac Cullinan)
• Judgement on the 6th case: Condor Mirador Mining, Ecuador (Judge: Enrique Viale)
• Judgement on the 7th case: Genetically Modified Organisms (GMOs)(Judge: Blanca Chancoso)
• Judgement on the 8th case: The Global Issue of Climate Change(Judge: Tom Goldtooth)
• Judgement on the 9th case: Defenders of Nature (Judge: Elsie Monge)

The Verdicts

The judges found in all nine cases that there was sufficient evidence of the violation of the Rights of Nature to warrant further investigation at a full hearing to be held later in the year.

As an example of the reasoning given for allowing a case to continue to a full hearing, here is the full transcript of Cormac Cullinan’s judgement on the Great Barrier Reef case, where the expansion and addition of coal ports along the Queensland coast is threatening the Reef’s ecosystem: “I find a credible case that the Rights of Nature are being violated on the Great Barrier Reef (the Reef) and will continue to be violated. The claim has been brought on behalf of the Reef itself, which is a community of many beings – their right to exist will be adversely affected. The plaintiff has also identified the Queensland and Australian National governments, as well as the corporations engaging in coal mining and export. We also heard that UNESCO recently released a report stating that the Reef may have to be added to the list of ecosystems at risk. There is a present and very real threat to the Reef.

Have the Rights of Nature been violated in this case? General principles must be looked at first. The Universal Declaration of the Rights of Mother Earth establishes a general duty of every human being as responsible for respecting and living in harmony with Mother Earth, and every human being and every public and private institution has a duty to act in accordance with the rights and obligations recognised in the Declaration. There are also specific duties mentioned in the Universal Declaration that are relevant to this case. For example, it states that States and public and private institutions must establish precautionary and restrictive measures to prevent human activities from causing species extinction, the destruction of ecosystems or the destruction of ecological cycles. In this case, it is clear that some of the institutions, like the federal and state governments were under a duty to prevent the destruction of the Reef.  There is also a duty to ensure that the pursuit of human wellbeing contributes to the wellbeing of Mother Earth now and in the future. The evidence presented suggested that the exploitation of these coral reserves will not contribute to the present and future wellbeing of Mother Earth.

There was also specific evidence relating to the violation of the following rights: the right to be free from contamination, pollution and toxic or radioactive waste; the right to integral health, for example the health of the reef being affected, as well as the health of fish and other beings; and the right of every being to wellbeing. We also heard evidence of the destruction of the Reef ecosystem, which is potentially a violation of the right to continue the vital cycles and processes of the Reef, free from human disruptions. And if we consider what would possibly justify any such infringement of the rights, the evidence that this may be justified was not presented. In fact, on the contrary, this damage to the Reef is being driven by an increase in coal exports that will contribute directly to the acceleration of climate change and further disruption of ecosystems.

So not only is there evidence presented of the failure to comply with the duties in the Universal Declaration and violation of certain rights laid down in the Declaration, but this case also raises important issues for consideration, which have the potential of global significance. For example, the Tribunal should consider questions such as the following: if the amount of greenhouse gases in the air is already so great that it is causing significant climate change, is any significant increase in the rate of production of hydrocarbons, such as coal mining, automatically a violation of the Rights of Nature and of Mother Earth? This is a question that this particular case provides us and is important for consideration. Accordingly, my conclusion is that there is a case to answer and that this case must be admitted for consideration by the permanent Tribunal.” 

Dr. Vandana Shiva then presented her closing address, supporting all of the judges in their findings. “This tribunal was called a Seed Tribunal. It is a seed sown, which has a lot of potential. I support all the Tribunal members who have recommended an admission of all the cases for a deepening of the processes for justice, and a deepening of the processes to stop the violation and violence against the Earth. I know the creativity that we derive from the Earth is a creativity that cannot be stopped. It cannot be threatened. It cannot be extinguished… I think we have started on a beautiful, exciting journey of finding new paths collectively. This is a small seed that I can see growing into a magnificent tree with many branches. Let’s nourish it, water it and hug it.” The Tribunal session was then closed.

The Global Alliance for the Rights of Nature intends to hold further International Rights of Nature Tribunals, details of which will be available on their website.

Anna Breytenbach has dedicated her life to raising awareness about our potential to communicate with other-than-human animals. She talks about the prevalence of “separation sickness” in Westernised cultures and how we all have the potential to relax into a way of being where we can communicate – non-verbally – with animals.  Anna realises that to many people with the “Western consensus reality” mindset, this is too far-fetched for words, and yet all the while we remain in this “separation sickness” our Earth is being negligently and often wilfully destroyed in the pursuit of profit from industrial growth. This is clearly to the detriment of both human and non-human animals, and yet we persist, perhaps in part due to our collective blindness to the integrity and interdependency of the whole.

The Animal Communicator is a poignant reminder that we share our planet with many other amazing beings, all of whom have as much right to be here as we do. It is one of the foundational tenets of Earth Law to recognise that all beings on Earth are of value and have the right to exist, to flourish and to regenerate, simply by virtue of the fact that we exist. Perhaps if we extended our cultural norms to include learning how to listen to and communicate with non-human beings we might appreciate and respect them more…

This brings me on to an event taking place in Findhorn, Scotland on 25th and 26th January 2014: WHOLE – Working Holistically On Legal Evolution, which will give participants the opportunity to find information in other-than-consensus-reality places. This event follows on from the Evolving Earth Law  workshop, which took place in Findhorn in May 2013.  Through the International Centre for Wholistic Law, Mumta Ito and Lucy Thomas are pioneering the use of systemic constellations in legal disputes, particularly in the context of environmental issues, to accelerate societal healing and change. Read Mumta’s article about the potential for systemic constellations to heal and change seemingly intractable situations here.

The Ecuadorian government’s action followed protests the previous week by indigenous groups, who were seeking to protect 2.6 million hectares of rainforest from new oil drilling. In a television address, President Correa falsely accused Fundación Pachamama of fomenting violence during a protest outside the Ministry of Hydrocarbons. Fundación Pachamama plans to appeal the government’s decision.

The Earth Law Alliance has written to the Ecuadorian Ambassador to the UK in support of the reinstatement of Fundación Pachamama (see below), and we encourage you to write a similar letter to the Ecuadorian Embassy or Consulate in your country.

Letter to the Ecuadorian Embassy in the UK:

Ms. Ana Albán Mora

Ambassador Extraordinary & Plenipotenciary of Ecuador to the UK

Ecuadorian Embassy

Flat 3B, 3 Hans Crescent

London SW1X 0LS

28th December 2013

Dear Ms. Mora

The Earth Law Alliance is a non-governmental organisation concerned with the development, implementation and enforcement of Earth Law at the local, national and international level. Our organisation’s objectives are supported by a number of leading environmental lawyers and thinkers around the world.

We were very disturbed to hear that the Ecuadorian non-governmental organisation, Fundación Pachamama, was closed down by President Correa on 4^th December 2013 and that it has not yet been reinstated despite widespread indignation and dismay at its unjust closure.

As the first country in the world to recognise in its constitution that Nature has legally enforceable rights to exist, persist, maintain and to regenerate its cycles, structures, functions and its processes in evolution (Art. 71), we were under the impression that Ecuador was one of the leading countries in the world in terms of recognising environmental as well as human rights – and that it was working with its indigenous people to provide a better future for all of its citizens and for the environment. However, these principles have been severely undermined with the closure of Fundación Pachamama and the false accusation that it has been stirring up dissent and violence due to its stand against oil development in and around indigenous territories in the south and central region of the Ecuadorian Amazon.

The Earth Law Alliance supports Fundación Pachamama’s work via the Global Alliance for the Rights of Nature. Our understanding is that Fundación Pachamama has always been non-violent and that it has remained within the rule of law. Indeed, Fundación Pachamama is upholding the constitutional principle that “Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms….. The State will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem” (Art. 71).

For 16 years, Fundación Pachamama has given a vital voice to Ecuadorian citizens who seek only to protect the rainforest and their ancestral territories, and to be consulted before any potentially damaging actions take place around their communities, as is their legal right. This is what we would expect to happen in a democratic society and we vigorously defend the right of organisations, wherever they are located, to speak up and be heard without impediment, on issues of public interest such as this.

According to international law United Nations ILO Convention 169, “the right of Indigenous peoples to determine their own process of development” is guaranteed. Ecuador has ratified ILO Convention 169 and acknowledges in its national constitution indigenous nations’ rights to protect and maintain their territories. Fundación Pachamama has been a voice and means for indigenous nations to claim the rights that the government has legally bound itself to honor, making its decision to shut down the organization one based in hypocrisy.

We urge you to uphold your constitution and we will maintain a spotlight on the Ecuadorian government’s action until Fundación Pachamama is allowed once more to operate freely within its democratic rights. Furthermore, we urge you to apply the precautionary principle when considering further exploitation of the rainforest, also in accordance with your constitution: “The State will apply precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of ecosystems or the permanent alteration of the natural cycles” (Art 73).

Yours sincerely,

Lisa J Mead

for the Earth Law Alliance

One of the drivers behind the Community Charter is the desire to prevent coal bed methane extraction in the area, due to great concern about the risks posed to local residents and local wildlife. Coal bed methane extraction is one of a number of gas extraction techniques, similar in some respects to hydraulic fracturing, or “fracking”. Over 3,500 formal objections have been lodged with the planners in relation to one energy company’s application to extract natural gas in the area, and it is now the subject of a public inquiry.

It is the first Community Charter to come into being since Earth Law Alliance member Polly Higgins and Isabel Carlisle of the UK’s Transition Network ran a workshop at Schumacher College in Devon earlier this year to establish a People’s Process for community self-empowerment, specifically for communities facing potential ecosystem destruction. Isabel Carlisle and Mothiur Rahman, also an Earth Law Alliance member, were instrumental in assisting the Falkirk Community in creating their Community Charter. A website is currently under development to share what thas been learned with other communities facing environmentally damaging developments.

Through listing the community’s tangible and intangible assets, the Charter sets out a clear vision of what the community values and wants to safeguard. It is not a legally binding document, but the intention is to give it legal effect through the planning process, by presenting it as a ‘material consideration’ that the planning authority needs to take into account in its decision-making. The Charter declares the sum total of the community’s intangible and tangible assets to be its ‘Cultural Heritage’ for assessment under the EU Environmental Impact Assessment Directive.  Importantly, the Charter recognises that nature has intrinsic value, and is not merely property.  It invites local authorities and corporations to engage in participatory planning processes that give recognition to nature’s intrinsic value.

The Falkirk community has also created a Community Mandate that requires a review of planning applications for coal bed methane extraction in light of the ‘precautionary principle’ and for full consideration be given to renewable energy alternatives. “Our democratic and legal systems should be protecting our communities from harmful vested interests, not the other way around. That’s why it was felt a Charter was needed,” said Jamie McKenzie Hamilton, a local resident who has been involved in the creation of the Charter.

See Falkirk Against Unconventional Gas for more information about the campaign.