Earth Law Precedents

Over the last decade, Gaia has committed to initiate, support, identify and connect legal precedents which recognise Earth Jurisprudence/Earth Law principles and practices. The strategy is to open spaces in the dominant western jurisprudence for the recognition of principles and practices which come from the primary source of law – the Earth – rather than from human interests.

Below are Earth Law precedents – legal instruments, cases and strategies which recognise Rights of Nature, respect for indigenous peoples’ rights and responsibilities to govern their sacred lands and territories according to their ecological knowledge and customary law, and require a duty of care to Earth and future generations.

Together these pioneering precedents are contributing to a shift in human consciousness and behaviour, and necessary transition towards Earth-centred goverance systems and a way of life.


GLOBAL

The important thing is for humans to come up with a binding agreement to live and act responsibly towards their Planetary neighbours.Thiong’o Ng’ang’a, PORINI, Kenya

Universal Declaration of the Rights of Mother Earth

In 2008 Polly Higgins, an UK barrister, called for a Universal Declaration on Planetary Rights. The United Nations invited her to speak at their Climate Change Conference in November 2008 where she proposed the need for a Universal Declaration of Planetary Rights. Polly and Cormac Cullinan (lawyer and author of Wild Law) drafted a Declaration which identified 12 rights and freedoms of Planet Earth. The document became the basis for the 2010 Universal Declaration of the Rights of Mother Earth.

In April 2010, following the failure of the Copenhagen Summit, the Bolivian Government organised an alternative World People’s Conference on Climate Change and Rights of Mother Earth for communities, NGOs, lawyers, academics, scientists and governments from around the world, in Cochabamba, Bolivia, coinciding with Mother Earth Day on 22nd April. Around 35,000 people participated from 140 countries. The participants drafted and adopted a Declaration on the Rights of Mother Earth, which built upon the earlier Declaration on Planetary Boundaries that was drafted by Polly Higgins and Cormac Cullinan. The Declaration on the Rights of Mother Earth recognizes Mother Earth as a Living Being with rights to life, existence and to continue her vital cycles and processes free from human disruptions. Download Declaration below in English and Spanish.

The Peoples Conference are calling for implementation of the Cochabamba Peoples’ Summit ‘Life and Earth saving’ proposals, including national implementation of the Declaration of the Rights of Mother Earth, establishment of an International Climate and Environment Justice Tribunal, recognition of community and indigenous rights, and a World Referendum on Climate Change in international negotiations.

Join the Global Alliance for Rights of Nature who are campaigning for the endorsement and implementation of the Declaration by the United Nations and governments globally.

World Charter for Nature

In 1982, over 100 member States of the United Nations General Assembly adopted a World Charter for Nature, which formulates general principles and obligations to guide human conduct, laws and practices to protect Nature. Recognising the intrinsic value of Nature and that humans are part of Nature, the Charter calls for humans to be guided by a moral code of conduct that does not compromise the ‘integrity of those other ecosystems or species with which they coexist’. The Charter also regulates human activities according to the Earth’s limits and processes, and common heritage and precautionary principles.

Humanity is part of Nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. Every form of life is unique, warranting respect regardless of its worth to humans, and to accord other organisms such recognition, humans must be guided by a moral code of action.World Charter of Nature

Earth Charter

In 2000, a group of Non-Governmental Organisations and allies adopted an Earth Charter which “seeks to inspire in all peoples a sense of global interdependence and shared responsibility for the well-being of the human family, the greater community of life, and future generations.” Four pillars of sustainability are: 1) Respect and care for the Community of Life; 2) Ecological integrity, 3) Social and economic Justice and; 4) Democracy, Nonviolence and Peace, and sixteen main principles. The Charter also recognises the role of traditional knowledge, cultural and spiritual rights of indigenous peoples, non-discrimination and self-determination. Although not legally binding, its principles are considered of universal relevance.

Proposed United Nations Crime of Ecocide

In 2009 Polly Higgins, UK barrister and activist, began a campaign calling on the United Nations to


 

Earth Lawyer Polly Higgins

adopt a law recognising mass destruction of ecosystems as a 5th international crime against peace – a crime of ‘Ecocide‘. Ecocide would be defined as: “The extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”

Polly argues that for the Earth’s right to life to be protected, a crime of Ecocide needs to be recognised in law. Just as a human right to life is governed by the crime of murder (or homocide) at an individual level and genocide at a collective level, the Earth’s right to life should be enforced by a crime of Ecocide.

Polly also recognises that there is an integral link between destruction of ecosystems and a break down in social relationships which lead to conflict and war. Founded upon a duty of care to the planet, this crime against peace would be of strict liability and erga omnes (binding on all – even those States who are not signed up to the International Criminal Court (ICC). Mining, fossil fuel extraction (e.g. Tar Sands) and deforestation could be classified as Ecocide. In 2001, Polly and the Hamilton Group organised a mock trial in the UK Supreme Court to test the proposed crime of Ecocide. Download a transcript of the mock Ecocide trial.

Proposed United Nations Declaration on Planetary Boundaries

In 2011 Peter Roderick, a public interest lawyer in the UK, proposed a draft United Nations Declaration on Planetary Boundaries which would recognise and respect the necessary Earth-system processes which sustain all life, and promote responsibility for safeguarding these processes from serious or irreversible damage. The Declaration draws on research, published in Nature magazine 2009, which argues that there are 9 critical Earth-system processes and associated thresholds which we need to live within in order to prevent irreversible damage to our planet Earth and all life. In October 2011, a group of sustainability experts, scientists and lawyers met at Exeter University to discuss this Declaration and call for its adoption at the Rio +20 Summit in 2012.

United Nations Declaration on Rights of Indigenous Peoples

In 2007 the United Nations endorsed a Declaration on the Rights of Indigenous Peoples (UNDRIP). Acknowledging the contribution of indigenous peoples and their practices to ecological governance, the Declaration recognises the cultural and spiritual rights of communities, and their relationships and practices with their sacred territories. The Declaration is an important advocacy tool for communities in asserting their collective rights to self-determination and traditional governance of sacred sites, as informed by their culture, spiritual traditions, traditional institutions and customary laws. Although not legally binding, the UNDRIP is highly persuasive and increasingly recognized as embedding international customary law. Download a briefing on the UNDRIP.

Indigenous and Tribal Peoples Convention (ILO 169)

In 1989 an Indigenous and Tribal Peoples Convention was adopted, which recognises and protects the collective rights of tribal and indigenous peoples. The Convention requires States to respect and facilitate indigenous and tribal peoples’ self-determination, spiritual and cultural rights, traditional governance and relationship with lands, customs and customary law, prior informed consent, and undertake assessments of social, spiritual, cultural and environmental impacts of planned development activities. The Central African Republic was the first African country to ratify the Convention on 28th April 2010.

IUCN, ‘Sacred Natural Sites Guidelines for Protected Area Managers’, Best Practice Protected Area Guidelines Series 16

In 2008 the IUCN adopted the Sacred Natural Sites Guidelines for Protected Area Managers to support protected area managers, as well as planning authorities, Non Governmental Organisations and sacred site custodians, to protect Sacred Natural Sites. The Guidelines recognise the spiritual values as a core dimension of sacred natural sites, and the primacy of custodians in their protection. Founded on 6 principles and 44 guidelines, including: to recognise sacred natural sites in protected areas, to integrate sacred natural sites located in protected areas in planning processes, to promote stakeholder consent, participation, inclusion and collaboration, to encourage improved knowledge and understanding of sacred sites, to protect sacred sites whilst providing appropriate management and access, including secrecy of location, and to respect the rights of sacred natural site custodians.

SOUTH AMERICA

Ecuador

First Constitution in the world recognises the legally enforceable Rights of Nature

In 2008, the peoples and Constitutional Assembly passed, with an overwhelming majority vote, the Ecuadorian Constitution which states that ‘Nature or Pacha Mama, from which life reproduces and enfolds itself, has the right to the integral respect for its existence and the maintenance and regeneration of its vital cycles, structures, functions and evolutionary processes. Nature also has a right to restoration, independent of damage to humans. Citizens have a right to a healthy and ecologically balanced environment, and reciprocal duty to respect the rights of Nature. Communities can require public authorities to comply with Nature’s rights. Governance of ecosystems is guided by the principles of ‘sumac kawsay’ or good living, intergenerational responsibilities, and strict application of the precautionary principle. The rights of indigenous peoples to self-determination, public participation and prior informed consent, governance of sacred lands/territories, through customs and traditional authorities are also recognised and protected.

Recognition of Rights of River Vilcabama

On 30 March 2011 the Provincial Court of Loja granted an injunction against the Provincial Government of Loja to stop violating the Constitutional rights of Vilcabama river to exist and maintain its vital cycles, structure, functions, and evolutionary processes. This is the first successful Rights of Nature case under Article 71 of the Ecuadorian Constitution. The Government’s project to build a road, without required environmental impact studies, detrimentally affected the river’s flow causing flooding, and disrupted wildlife and local communities’ livelihoods. Two members of the public, Richard Frederick Wheeler and Eleanor Geer Huddle, applied to the Court for an interdict. The Court upheld the precautionary principle, that until the Government can prove that the widening of the road would not affect Nature the presumption is for the protection of the rights of Nature. The Court also endorsed the intergenerational principle, recognising the importance of Nature for protecting the interests of present and future generations. The Government is required by the court to develop a rehabilitation and remediation plan and publicly apologise in a local newspaper for beginning the construction of a road without the necessary environmental licence.

Gulf of Mexico oil spill and Defence of the Rights of Nature

On 26th November 2010 an international alliance of environmental activists filed a case against British Petroleum (BP) in the Ecuadorian Constitutional Court, defending the Rights of Nature which are recognised under the 2008 Ecuadorian Constitution. The group included Nnimmo Bassey from Nigeria and Vandana Shiva from India (both winners of the Right Livelihood Award), and activists from Mexico, Peru, and Ecuador, including the Chair of the Constitutional Review panel for Ecuador. The Constitution recognises Nature’s right to be restored and allows for a citizen or group to file a case in the Constitutional Court of Ecuador for a violation which occurs in a different country but which affects the Earth as a whole. Rather than seeking financial compensation, the coalition calls for BP to release all data and information on the ecological destruction caused by the oil spill, and that BP refrains from extracting as much oil underground as they spilled in the Gulf of Mexico disaster. Hear Nnimmo Bassey (Chair of Friends of the Earth International) discuss ‘Justice for the Earth Community: Defending the Rights of Nature and Holding Corporations to Account’ at Gaia Learning Centre, September 2011.

Oil company fined for polluting the Amazon

In 2001 a court in Ecuador fined US oil giant Chevron $8.6bn (plus 10% reparations fee) for dumping 18.5 billions of gallons of toxic materials into the Amazon rainforest and rivers, resulting in crop damage, death of animals as well as increased cancer rates in the affected areas, between 1972 and 1992. The lawsuit was brought on behalf of 30,000 Ecuadoreans, in a case which lasted for nearly two decades. “Justice does exist,” said Guillermo Grefa, a Kichwa representative to the Assembly of Affected Communities who brought the class action suit. “I can now dream of drinking clean water, water with no oil residue, and that the Earth will begin to clean and heal.” Pablo Fajardo, lawyer for the plaintiffs, described the court ruling as “a triumph of justice over Chevron’s crime and economic power.” This ruling is setting a significant precedent that could lead to companies operating in developing countries to be forced to comply with higher anti-pollution standards. The plaintiffs, although recognising the importance of the ruling, are planning to appeal the sentencing and ask for more adequate compensation to reflect the extensive environmental damage and costs of possible restoration. Chevron is also planning on appealing, condemning the ruling as “illegitimate and unenforceable.” Learn more here.

Bolivia

Law of Mother Earth

In 2010 Bolivia endorsed a new law which recognises the Rights of Mother Nature to life, diversity and balance. The Act promotes guiding principles including the common good, interculturalism and no commodification of Nature. The Act also recognises the duties of the State and citizens to respect Earth’s rights. Bolivia will also create an Ombudsman for Mother Earth. See international media coverage, including a BBC interview with Cormac Cullinan. Download an unofficial English translation of the draft Law of Mother Earth.

Colombia

Protection of Intangible Cultural Heritage of Pirá Paraná

In 2010, the Colombian Ministry of Culture approved an application by the Association of Traditional Authorities of the Pirá Paraná (ACAIPI), with support of Gaia Amazonas, to include the traditional knowledge of indigenous communities of the Pirá Paraná River, in the Amazon, as part of the nation’s Intangible Cultural Heritage. For the indigenous people of the Pirá Paraná, ‘Hee Yaia Keti Oka’ is an organic system of traditional knowledge aimed at maintaining the delicate balance of relations between humans and Nature, and contains millennial wisdom for managing territory, time and life. In November 2011, the UNESCO approved inclusion of the culture of Jaguar Shamans of Yuruparí on the List of Intangible Cultural Heritage. Watch a short video and download an English translation of the Application submitted to the UNESCO List of Intangible Cultural Heritage.

Belize

Court rules Mesoamerican Coral Reef is a Living Being

In 2010 the Chief Justice of the Court ruled that the Reef is not property but a Living Being which is part of Belize’s national patrimony and cannot be sacrificed to commercial interests. On 13 January 2009, a cargo vessel collided into the Mesoamerican Reef, near Caye Glory in Belize, damaging 6,000 square meters of pristine reef. The Mesoamerican reef is over 225 million years old, the largest coral reef in the Atlantic Ocean and is home to more than 60 coral reef species and 500 species of fish. One expert report estimated that it will take approximately five hundred years for the Belize Barrier Reef to recover from the grounding of the vessel. The Court found the shipping company liable and required it to pay $11 million Belize dollars ($5.5 million US dollars) plus an interest of 3% per year for environmental and ecological loss and the cost of restoration services.

AFRICA

African Charter on Human and Peoples’ Rights (ACHPR)

In 1981 the African Charter on Human and Peoples’ Rights was adopted, which recognises the devastation of colonialism and is motivated by a desire to eliminate all forms of foreign exploitation. The Charter recognises collective rights and duties of peoples, including self-determination and participation in governance, and strengthening of cultural values. The Charter calls for respect of customary laws in implementing the Charter, and requires the African Commission to draw inspiration from international law and jurisprudence from other countries on human and peoples’ rights. Although decisions made by the Charter’s African Court only bind the parties to the case, they can be seen as an authoritative interpretation of the Charter, and therefore develop jurisprudence on key issues which are relevant to all African states. Download a briefing on the African Charter.

South Africa

Protection of Sacred Sites Network and Territories, Venda

On 7th July 2010 the South African High Court granted an interim court interdict ordering an illegal development of tourist chalets on Phiphidi Sacred Site to stop. The custodians, the Ramunangi Clan, courageously took the developer to court for violating their cultural

and spiritual rights as recognised under customary law, national law and the South African Constitution, as well as breaching national planning regulations. The Judge recognised the custodians’ traditional and Constitutional rights and agreed that the whole site is sacred – “In the same way a church building is regarded by some as a holy place, even though the rituals are done only at the altar“.

Venda’s forests, rivers, mountain peaks and waterfalls are places of vital ecological, cultural and spiritual importance. The indigenous communities revere these areas as sacred sites and the sources of their laws. Each sacred site is protected by a different clan who is a custodian of that site. The elder women within these clans – the Makhadzis – are specifically responsible for protecting the sacred sites. They are known as the “rainmakers” of South Africa, using their cultural traditions of rainmaking to maintain the health and integrity of the local ecosystems. However, Venda’s cultural and ecological diversity is threatened by land grabbing, development projects, tourism and now mining.

The custodians were strongly supported by Dzomo la Mupo, Mupo Foundation, African Biodiversity Network, GRAIN, Gaia Foundation and others – as the violation of one sacred site affects the viability of the whole interconnected network of sacred sites. However the threat continues as building resumed on Phiphidi sacred site, in breach of the court interdict.

On 22nd February 2011 the South African High Court extended the temporary court interdict to the builders to stop illegal development at Phiphidi falls. Contempt of court proceedings and hearing of a permanent court interdict are now under way.

To ensure long-term protection of the network of sacred sites, Dzomo la Mupo are documenting principles asserting that their sacred sites are ‘No-Go Zones’ for development. They are also developing local constitutions and community governance plans for each of the sacred sites. These will lay the foundation for gaining legal recognition for the custodians to exercise their responsibility to protect their network of sacred sites according to their customary governance systems, under national and international laws. Learn how the Makhadzis are regaining what they have lost, through intergenerational learning and eco-cultural mapping.

Stop Coal of Africa mining in Mapungubwe and Limpopo

On 3rd August 2010, the Save Mapungubwe Coalition launched a High Court interdict to stop mining in an area of critical ecological, cultural, spiritual and archaeological importance. Mapungubwe Cultural Landscape and National Park in Limpopo is an UNESCO World Heritage Site and Biosphere Reserve. However proposed mining by Coal of Africa (CoAL) at Vele colliery threatens this sacred territory. The local communities were not consulted about the mining and the ecological, cultural and social impacts were not fully taken into account. The Coalition are calling for recognition of areas of of heritage, ecological, biodiversity, cultural and hydrological importance where mining should be restricted. On 5th August 2010, the South African Environmental Management Inspectorate (Green Scorpions) issued a compliance order to CoAL to stop mining. In December 2010, the Centre for Child Law at University of Pretoria applied to intervene as amicus curiae in the interdict application arguing that the mining violates children‘s Constitutional rights to environment and cultural heritage. The Coalition are now in negotiations with CoAL to ensure CoAL will adhere to strict environmental and social and accountability standards should mining take place.

Kenya

Protection of Karima Sacred Forest

Karima forest 

Karima forest

In October 2011, the custodians of Karima Sacred Forest launched legal proceedings to stop clear-felling of plantations and thereby further destruction of Karima Sacred Hill. The community took this decision when the Town Council expressed its intention to clear-fell the exotic plantations and claimed to have completed a Participatory Forest Management Plan (PFMP), but without adequate consultations with the local community. In July 2011 the Town Council started clear- felling the plantation which sparked community protests, because of the erosion this would cause which would further devastate the Hill.

Karima Forest, near sacred Mount Kenya, is home to a diverse indigenous forest and many rivers. The indigenous community has strong cultural and religious values and relationship with the Forest, anchored in their story of origin and laws of origin. Before colonialision, four clans traditionally governed the Forest together with the adjacent territory. Under the communities’ constitution and principles of governance of the four clans, it is against the principles of common good to, for example: fight over the hill or her ‘resources’, tamper with the sources the Rivers, cut down living trees or kill wild animals. However, since the 1950s the colonial administration have deforested Karima forest to make way for exotic plantations, banned cultural ceremonies and undermined the traditional management of Karima Forest. Today exotic eucalyptus plantations cover about 70% of Karima.

The Porini Association, a local lawyer, the African Biodiversity Network, Gaia and allies are supporting the communities in solidarity. The Karima community are setting a precedent for the legal recognition of the Karima Forest Hill as a Sacred Site, as well as reclaiming their traditional custodial rights and responsibilities to govern their sacred sites according to Earth-centred customary laws, as handed down to them by their ancestors. Learn how the elders and community are regenerating Sacred Karima Forest through their traditional knowledge and customary governance systems.

Local precedents, particularly in South Africa, Kenya and Colombia, have potential for regional and international impact, as partners in the African Biodiversity Network and other communities learn from and develop their own precedents which can secure legal recognition of sacred sites and their traditional governance systems.

Endorois Case

In 2009, after a 40 year struggle, the African Commission made a landmark ruling, finding that eviction of Kenya’s Endorois peoples to make way for a wildlife reserve, with minimal compensation, violated their rights as indigenous peoples to their customary lands and to ‘free, prior and informed consent’, culture, religion, health, and biological diversity. The Commission ordered Kenya to restore the Endorois to their historic land and compensate them. On 4 February 2010, the African Union affirmed the Commission report. It is the first ruling of an international tribunal to recognise indigenous peoples in Africa and their rights to ancestral lands as custodians, and that there had been a violation of the right to (social and cultural) development. This is an important precedent for Kenya and Africa. Download a briefing on the Endorois case.

EUROPE

UK

Climate 9 case

In June 2010, Climate 9 was charged with breach of the peace and vandalism for blockading Aberdeen airport in Scotland. Climate 9 justified their non-violent direct action on the grounds of urgency and moral duty to stop greater crimes of climate change, destruction of Earth, and social inequity to present and future generations. Climate 9 were supported by communities around the world suffering the impacts of climate change, scientists, politicians and faith groups. They argued that ‘climate defence is not an offence’. Despite being found guilty of a breach of the peace and fined, Climate 9 continue to campaign for justice with other activists.

Hungary

Ombudsman for Future Generations

In 2007 Hungary appointed a Parliamentary Commissioner for Future Generations to uphold the peoples’ Constitutional right to a healthy environment. The Commissioner is entrusted with broad powers to investigate complaints including environmental issues, advocate on sustainability issues and also widen the knowledge base through research projects.

Russia

Establishment of Five Ethno-Parks in Altai Republic

In 2001, indigenous communities in the Altai established a protected area or Ethno-Park called Karakol Nature Park Uch Enmek. Led by an indigenous elder, Danil Mamyev, the Ethno-Park is governed by indigenous people according to their traditional ecological customs. There are now five such Ethno-Parks recognised. The Altai Republic is a small mountainous republic in Russia situated in southern Siberia, near the border of Mongolia, Kazakhstan and China. Indigenous Altaian’s have preserved the rich cultural heritage of their ancestors, an ancient shamanic tradition with a strong Earth-centred belief of human existence and the Universe. However their sacred territory and culture is now under threat by the proposed construction of a 1,700-mile gas pipeline through the Ukok Plateau. Learn more about the work of the Foundation for Sustainable Development of Altai (FSDA) to protect their sacred territory.

Spain

Recognition of Rights of Apes

In a landmark decision on 25th June 2008 the Environmental Committee of the Spanish Parliament approved resolutions (e.g. Resolution 161/000099) urging Spain to comply with the Great Apes Project’s which calls for the protection of rights of chimpanzees, gorillas, orang-utans and bonobosto to life and not to be tortured.

United States

Local laws recognise Rights of Nature and remove legal powers of corporations

In 2006, communities in Tamaqua and the Community Environmental Legal Defence Fund (CELDF) developed the first local ordinance to recognize the Inalienable Right of Natural Communities and Ecosystems to Exist and Flourish (Rights of Nature). This was the model for language included in the National Constitution of Ecuador recognizing the Rights of Nature. The Tamaqua Sewage Sludge Ordinance banned corporations from applying sewage sludge and removed their legal powers. The Ordinance also recognised the rights of communities to local self-governance, and locus standi (standing) in court to enforce the Rights of Nature. Learn about other CELDF and local Ordinances which recognise the rights of communities to local governance, rights of ecosystems and deny corporations engaged in prohibited activities of their legal powers.

Proposed law prohibits invasive research on Great Apes

In 2011, a law called the Great Ape Protection and Cost Savings Act, was re-introduced with support of both the House of Representatives and the Senate to prohibit invasive medical research on chipanzees, and retire federally ‘owned’ chipanzees to a sanctuary. This law would recognise the inherent Rights of Great Apes. Sign the petition to ensure this law becomes a reality.

Seguici in Facebook