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.

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.