Indigenous Perspectives at the Forefront of Environmental Jurisprudence

Photo Credit: LecomteB Creative Commons License

Photo Credit: LecomteB Creative Commons License

By Darlene Lee

In industrialized, urban society we have a tendency to see ourselves as separate to nature. Earth Law, a system of environmental jurisprudence, transforms how we think about our place on Earth. Earth Law sees humans as part of the natural world and holds that if we simply upheld the rights of rivers and forests and oceans to exist and flourish, we would go a long way to addressing many of the seemingly intractable environmental issues of our time. Carbon sequestration, fresh water, soil fertility, and wildlife populations would all increase.

While industrialized views seek to command nature, other cultures recognize and respect their dependence on nature. Many indigenous peoples view themselves as living in partnership with animals and ecosystems with care and respect. Earth Law draws inspiration from this shared worldview where humans form one part of a planetary network, connected to all.

Examples of Indigenous Perspectives on Nature

Non-Indigenous people tend to view nature as a commodity, something owned, bought, sold, and used. The language used to describe nature reflects this: natural “resource” and land “development” (as if the land remains unfinished in some way without human intervention) are only a few of the many examples.

By contrast, indigenous cultures tend to consider nature as an integral part of their community – not mere property. For example, Aboriginal peoples in Western Australia, the Palyku, have a deep relationship with the land. Ambelin Kwaymullina explains:

“For Aboriginal peoples, country is much more than a place. Rock, tree, river, hill, animal, human – all were formed of the same substance by the Ancestors who continue to live in land, water, sky. Country is filled with relations speaking language and following Law, no matter whether the shape of that relation is human, rock, crow, wattle. Country is loved, needed, and cared for, and country loves, needs, and cares for her peoples in turn. Country is family, culture, identity. Country is self.”[i]

Another example comes from Chief Seattle, a Suquamish Tribe (Suquamish) and Dkhw'Duw'Absh (Duwamish) chief:

“Will you teach your children what we have taught our children? That the earth is our mother? What befalls the earth befalls all the sons of the earth. This we know: the earth does not belong to man, man belongs to the earth. All things are connected like the blood that unites us all. Man did not weave the web of life, he is merely a strand in it. Whatever he does to the web, he does to himself. One thing we know: our god is also your god. The earth is precious to him and to harm the earth is to heap contempt on its creator.”[ii]

Traditionally, Māori believe there is a deep kinship between humans and the natural world. This connection is expressed through kaitiakitanga – a way of managing the environment. Today there is growing interest in kaitiakitanga as tribes restore their environment and their culture. Māori culture views humans as deeply connected to the land and to the natural world.

Tangata whenua – literally, people of the land – have authority in a particular place, because of their ancestors’ relationship to it. Humans and the land are seen as one, and people are not superior to nature. The natural world ‘speaks’ to humans and give them knowledge and understanding. Human life centers around aligning oneself with the natural world.[iii]

The Inuit, native peoples who have lived in the Canadian Arctic and Greenland for thousands of years, now live in the autonomous territory called Nunavut. They have both a physical and a spiritual relationship with the environment, embodied in their traditional practices of hunting and seasonal migration and interactions with the environment. In Inuit society, animals hold a central role: not only do they share the land on which the Inuit live and serve as the traditional food source; they are also present in every sphere of Inuit culture, including religion, healing, and art.[iv]

Finally, some indigenous leaders have foreseen the destruction of nature, as well as its restoration. Last century, an old wise woman of the Cree Indian nation named "Eyes of Fire" prophesied that one day, because of the white man’s greed, Earth would become ravaged and polluted, forests destroyed, birds falling from the air, waters blackened, fish poisoned and trees disappearing. The prophesy continued that Warriors of the Rainbow, keepers of all the Ancient Tribal Customs, would restore us to health and make the Earth green again. This day of awakening would see all the peoples of all the tribes form a New World of Justice, Peace, Freedom and recognition of the Great Spirit.[v]

How Earth Law Learns from Indigenous Views of Nature

Despite the growing awareness and advocacy for protecting nature, our planet’s health continues to decline. One root cause for this dire situation arises from the assumptions behind our current environmental laws. Environmental laws, in large part, focus only on human benefit and thus legalize harming the environment by regulating how much pollution or exploitation can legally occur. This results in economic considerations outweighing nature’s fundamental needs. Further, the environment itself does not have a voice in decisions made, nor the ability to demand adherence to the law.

Earth Law learns from the worldviews of many indigenous cultures and applies it to legal systems across the globe. It recognizes that humans form but one part of the complex and interconnected web of life on Earth. Earth Law focuses on upholding ecosystems’ inherent right to exist and flourish, and believes that humans have a responsibility to respect and enforce those rights. Laws recognizing the rights of nature thus change the status of natural communities and ecosystems from property to rights-bearing entities, with these rights being enforceable by people, governments and communities. It makes nature equal partners with humans in the shared biosphere we call Earth.

Laws developed under the “Earth Law” framework aims to protect the environment for the benefit of all members of the Earth community, human and non-human. This ensures true protection, including both proactive and precautionary actions, as well as effective restorative projects. Legal rights for nature also allows humans to represent nature in judicial proceedings, enabling us to hold accountable those harming nature and requiring remedy and relief.

Real Life Examples of Indigenous Campaigns that Earth Law Could Bolster

(1) The World’s First River to Gain Rights

The Whanganui Iwi, an indigenous group in New Zealand, won a landmark case this year when New Zealand Parliament passed the Te Awa Tupua Bill into law, which gives the Whanganui River legal personality and standing and protects its rights in law.

“Since the mid-1850s Whanganui Iwi have challenged the Crown’s impact on the health and wellbeing of the river and those who lived on it, and have fought to have their rights and their relationship with the River recognised,” said Gerrard Albert, the Chairperson of Nga Tangata Tiaki o Whanganui.[vi]

By James Shook  Creative Commons License

By James Shook Creative Commons License

(2) A Partial Win in Ecuador

In July 2010, the Afro-descendant community of La Chiquita and the Awá community of Guadualito filed a landmark lawsuit against Los Andes and Palesema Oil Palm Companies for harm to local ecosystems (e.g., from deforestation, biodiversity loss, and river pollution) and to local communities.

In January 2016, after over six years, Ecuador’s Esmeraldas Provincial Court handed down a decision restricting future oil palm expansion in the region and calling for other protective measures, a victory for La Chiquita and Guadualito. However, disappointingly, the decision limits reparations from the palm oil companies, although they are required to take certain protective actions. Local communities report that some months later, the decision is not being fully enforced.[i]

(3) Win in Suriname

Suriname, officially known as the Republic of Suriname, is a sovereign state on the northeastern Atlantic coast of South AmericaIt is bordered by French Guiana to the east, Guyanato the west and Brazil to the south.[ii]

On January 28, 2016, the Inter-American Court of Human Rights found the country of Suriname responsible for multiple violations of the American Convention on Human Rights. These violations arose from activities including bauxite mining, grants of individual titles to non-indigenous persons and restrictions imposed by two nature reserves. The Court further highlighted Suriname’s failure to recognize and guarantee the legal personality and territorial rights of the Kaliña and Lokono.

The case of Kaliña and Lokono Peoples v. Suriname was first submitted by the chiefs of the eight Kaliña and Lokono villages of the Lower Marowijne River and the Association of Indigenous Village Leaders in Suriname.[iii]

(4) The Inuit in Canada Win in Court

In the companion cases of Hamlet of Clyde River et al v PGS et al. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (July 2017), the Supreme Court of Canada unanimously decided to rescind the permit of the National Energy Board (NEB) authorizing seismic testing in Baffin Bay and the Davis Straight.[iv] These surveys had the potential to affect migration patterns of marine mammals traditionally harvested by the Inuit at Clyde River.[v]

Jerry Natanine, a former mayor of Clyde River said his community is not ruling out co-operation with energy companies in the future. "We're not totally against development, but it has to be done right. You know, whales don't have to die, seals don't have to die off, plankton. There's a better way to do these things, that's what we've got to find out."[vi] However, this case sent a clear message that indigenous rights and related environmental protections must be upheld.

How You Can Be Part of the Global Movement for Rights of Nature

Indigenous battles to defend nature have taken to the streets, leading to powerful mobilizations like the gathering at Standing Rock. Now they have taken to the courts, strengthened by innovative legal ways of protecting nature.[vii]

Actions you can take:

Suriname Forest by David Evers  (Davness_98) Creative Commons License

Suriname Forest by David Evers (Davness_98) Creative Commons License