By Steven Robins. Article originally published in the Daily Maverick on 6 January 2022.
The gradual growth of the notion that the protection of our natural world can be achieved by the assertion of the legal rights of Nature has begun to shift the way many activists, scholars and philosophers approach the question of how to secure a better world for the future. But ‘rights of Nature’ legal trailblazer, Cormac Cullinan, says that piecemeal environmental law alone cannot address our planetary crisis adequately, and what is needed is a fundamental change to mainstream economic and cultural ideas about the separation of humans from Nature. For this to begin to happen, Cullinan argues, we need a Constitutional framework that embraces ‘Earth jurisprudence’.
I recently attended a webinar on the protection of the Cape Flats Aquifer convened by the Philippi Horticultural Area (PHA) Food & Farming Campaign. One of the speakers from a legal NGO spoke about existing legislation that could be used to protect underground water sources and briefly referred to the idea of the ‘rights of Nature’. The speaker was followed by a well-known and respected water scientist who provided a brief description of aquifers as underground water-bearing permeable rock and soil material, before turning to the question of rights of Nature raised by the earlier speaker. She insisted that it made little sense to equate the rights of humans with those of whales and dolphins, and added that this was, in any case, a Euro-American legal concept that had little relevance and traction in the global South.
What this scientist did not mention, however, was that the rights of Nature is in fact already enshrined in the Ecuadorian Constitution. The preamble to that Constitution commits Ecuador to building “a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumak kawsay”. The Constitution makes it clear, firstly, that “the good way of living” must be pursued by living in harmony with Nature, and secondly, that recognising and enforcing the rights of Nature is the most important legal mechanism for promoting harmony with Nature. This constitutional provision has in fact had very real effects in the courtroom, for instance when plans to mine in a protected cloud forest in Ecuador were recently quashed because this violated the country’s Constitution. This landmark ruling insisted on placing humans in context as part of Nature, rather than above, or apart from, the ‘non-human’ world. In fact, Dr Mika Peck, an academic in the UK, stated that this ruling was as significant to Nature as Thomas Paine’s Rights of Man were to the human species.
For many people, it may be difficult to imagine recognising the rights of Nature without placing human rights above, or separate from, the ‘other-than-human’ world. But ideas related to the rights of Nature are very much in line with scholarly debates taking place all over the world about the human-nature nexus and the agency of the non-human, including those material entities such as rocks, rivers and mountains that many consider being inert and inanimate. If the idea of animal rights is becoming increasingly acceptable, why is it so difficult to imagine that forests, mountains, rivers and aquifers could have rights?
Stellenbosch University anthropology doctoral student, Matthew Wingfield, has found that the successes of the PHA Campaign’s legal arguments for the protection of the ecologically sensitive aquifer are largely a result of the greater visibility this vital underground water body has acquired in a post-‘Day Zero’ scenario of global climate change and water scarcity. Notwithstanding the aquifer’s central role in the PHA court case opposing urban development on top of this underground water body, many judges, lawyers, scientists, and ordinary citizens would no doubt still find it a bit of a stretch to accept that the aquifer ought to have rights.
For PHA Campaign activists, it makes perfect sense to foreground the Cape Flats Aquifer as a key actor that, if legally protected from environmentally destructive development, could provide Cape Town with long-term water and food security. Over the years, these activists have held aquifer seminars together with scientists to advance interdisciplinary knowledge about this invisible and opaque underground water entity. In December 2021, the PHA Campaign held an Aquifer Festival at the PHA that included talks, art and music celebrating this invisible watery body. Activists wore T-shirts with the words: “Aquifer Below, Life Above” to convey the connection between this underground water entity and everyday life that takes place on top of it, including illegal dumping and contamination from large-scale commercial farming with pesticides and fertilisers. As one of the organisers of the Aquifer Festival, the PHA Campaign’s Nazeer Sonday, put it: “In the past the PHA Campaign hosted two successful Cape Flats Aquifer Seminars [2014, 2016] in which scientists, academics, farmers and activists confirmed the value of the aquifer. The seminars started the process of bringing people together to protect the Cape Flats Aquifer. This is growing. Day Zero, pandemics and climate change [are] caused by our broken relationship with nature. The Aquifer Festival 2021 objective is to shift the consciousness of citizens. Through the arts, we want to protect the aquifer. We need the aquifer. The aquifer needs us.”
PHA Campaign activists recently won a court case in which the judge instructed private developers to go back to the drawing board because they had not adequately taken into account the risks of detrimental consequences for the aquifer of constructing massive concrete structures above it. Although the judge did not rely on the concept of the rights of Nature in her judgement, it appeared that the Cape Flats Aquifer (CFA) had indeed become the central actor in this courtroom drama. But what would it mean for the aquifer to have rights?
Environmental writers such as Amitav Ghosh and Jason Moore have claimed that the conquest of the Americas and many other parts of the world by Europeans not only unleashed genocidal violence and slavery and the relentless extraction of ‘natural resources’, but it also set in motion cultural ideas that indigenous and colonised peoples, and women, could be classified as belonging to ‘nature’ — and hence ‘less than human’. These ideas have been part of dominant Western scientific, cultural and intellectual traditions in terms of which only humans (i.e. white European males) had souls, rights and the capacity to make history; in this schema, ‘Nature’ and the non-human world was deemed to be inert and without agency. Yet, even 19th-century scientists such as Alexander von Humboldt believed that nature consisted of a ‘web of life’ that included both human and non-human worlds that were full of vitality. In recent years, this perspective has been substantiated by scientists such as Suzanne Simard whose studies of ‘the social life of forests’ have found that trees have the capacity to communicate and cooperate with each other through subterranean networks and partnerships of trees and fungi known as mycorrhizas. Clearly, ‘Nature’ is not as inert as some may believe.
In an age of climate catastrophe, environmental activists have returned to ideas about the vitality of Nature that were once universally held by humanity, and have been kept alive by indigenous cultures. These ideas about vital natural worlds have been promoted as antidotes to capitalist ideologies of relentless economic growth and extraction of the earth’s resources. From the perspective of some of these activists, indigenous peoples protected the earth because they had no clear separation between humans and Nature — and because they recognised that mountains, rivers, and ancestral spirits were such intimate aspects of their lives. These ideas are often seen by environmental activists to be in sync with their own efforts to challenge the extractive capitalist logics of agroindustry and mining that view Nature simply as a ‘resource’ to be exploited to increase corporate profit margins and dividends of shareholders. It is within this context of understandings of the vitality of the web of life, that the idea of the rights of Nature is currently circulating so widely in environmental struggles.
Although there is still a long way to go before the rights of Nature are recognised in South Africa law, the growing opposition of rural communities to mining suggests that this concept could find some traction. In places such as Xolobeni in the Wild Coast area of the Eastern Cape, rural communities have mobilised around ‘the right to say no’ to titanium mining, and have insisted on proper consultation and community participation. They have also drawn on ideas of ‘sacred space’ to protect their land and livelihoods from mining. These communities also recently successfully opposed Shell’s plans to conduct seismic surveys in the ocean off the Wild Coast — thereby rejecting extravagant claims by government and mining companies that mining will provide jobs and development in their villages. Likewise, First Nations activists opposing the Amazon Corporation mega-development in Cape Town’s Two River Urban Park claim that their Khoi ancestors had intimate relationships with the sacred spaces at the confluence of the Black and Liesbeek rivers. These environmental struggles are part of global mobilisations, including by indigenous activists opposing oil pipelines in the Niger Delta area of Nigeria as well as North America. These struggles are animated by narratives about a vital natural world that is anything but inert.
Amitav Ghosh writes in his latest book The Nutmeg’s Curse: Parables for a Planet in Crisis, that the West is responsible for the contemporary planetary crisis, which he attributes to the legacies of European colonial violence (including genocide and slavery), histories of racial capitalism and environmental destruction produced by ideologies of endless growth and consumption propelled by unsustainable energy and resource use. According to Ghosh, it is not possible to solve this planetary crisis without a shared narrative in which all humans acknowledge their mutual dependence not just on each other, but on the non-human world as well. This would also require no longer seeing the Earth as an inert entity that exists purely to provide humans with resources. But how could such seismic changes in perspective come about, and would this be enough?
Matthew Wingfield and I recently interviewed Cormac Cullinan, one of the leading environmental lawyers in South Africa. Amongst his many other accomplishments, Cullinan played a leading role in the drafting of the Universal Declaration of the Rights of Mother Earth, adopted by a Peoples’ World Conference convened in Bolivia in 2010. His Cape Town-based legal firm previously represented the Wild Coast communities of Xolobeni and adjacent villages in opposing the construction of a toll road through their ancestral lands. It is currently representing a range of parties opposing seismic surveys by Shell off the Wild Coast and the Observatory Civic Association (OCA) and Goringhaicona Khoi Khoin Indigenous Traditional Council in their legal challenge to the River Club development in the Two Rivers Urban Park in Cape Town.
Cullinan’s interest in environmental issues began as a teenager when he came to realise that the most fundamental issues confronting the future of humanity concerned ecological issues. Decades later, in Wild Law, a pioneering book he published in 2002, Cullinan outlined his philosophical perspective on these ecological challenges. He believes that human behaviour has been changing the chemistry of the planet so radically that it has threatened most lifeforms.
Cullinan told us about how his thinking about environmental law had changed over the years. “So, for many years, I proceeded happily drafting environmental legislation because I thought this would have a wider effect. I then began to realise that there were some problems that couldn’t be fixed by drafting legislation. It wasn’t the question of finding the right words and legal concepts. The problem was deeper than the law; it preceded the law.” Although he still believes that law has a role to play in regulating the worst excesses of such behaviour, he has come to the conclusion that there are serious limits to the role of the law, which ultimately protects and legitimises the property rights of precisely those oil, gas, and mining corporations that are largely responsible for fossil fuel emissions and the current state of the climate crisis. This realisation led Cullinan to conclude that what is needed is a radical shift in legal, economic and political governance systems. It would also require a decisive break from mainstream economic and cultural ideas about the total separation of humans from nature.
For Cullinan, a useful approach to addressing the planetary ecological crisis would be to learn from Ecuador’s enshrining of the rights of Nature in its Constitution. He notes that such an ‘Earth jurisprudence’ could constitute a fundamental challenge to the core premises of the entire legal, economic and political governance system. This could change the purpose of the entire governance system from promoting human domination and colonisation of Earth to promoting a more harmonious co-existence based on respect for other beings, including ‘other than human’ ones. While he acknowledges that this may be very difficult to implement, he is convinced that, unlike environmental law, it would address the root causes of the current social and ecological catastrophes. It would also provide possibilities for protecting rivers, oceans and aquifers from the devastating effects of extractive mining, and go some way towards safeguarding ecologically sensitive aquifers and rivers from rapacious private developers. DM
Professor Steven Robins is with the Department of Sociology & Social Anthropology, University of Stellenbosch.
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