Michelle Maloney Australian Earth Laws Alliance 13 December 2014 (Byron Bay)

Asserting community and nature’s rights: a new legal &

community organising framework

Michelle MaloneyAustralian Earth Laws Alliance 13 December 2014 (Byron Bay)

Our current legal system supports the destruction of the natural world

Local communities in Australia◦ Are not recognised in the Australian Constitution◦ Have limited powers - local councils are created by State

Governments◦ Have few legal rights to protect local ecosystems in the face of

State Govt/Fed Govt approved activities Other approaches

◦ More than 150 communities in the USA are using a new framework for community organising and they’re ‘pushing’ the current legal system to change

◦ It’s a mix of peaceful civil disobedience and local level law reform◦ And it could be used here

Summary

1. Why is our legal system failing to protect the ecosystems upon which we depend?

2. Why other communities are doing things differently - particular focus: CELDF model

3. Can this model work in Australia generally and New South Wales in particular?

4. Notes about strategies and approaches

This presentation

Our mission is to promote the understanding and practical implementation of Earth jurisprudence and ‘wild law’ in Australia◦ “Jurisprudence” = a theory of law

Network of lawyers, other professionals, community members, students

1500 people across Australia are part of our network

‘Core group’ – Board of Management, National Convenor, Project and Admin team

We’re all volunteers

About AELA

AELA’s five core themes of work

Education, Arts & culture; Cross cultural

Science,Ethics,

Indigenous knowledge,

Ecospirituality

Networks andsupport for

community groups

Governance, lawcommunity organising

Alternative legal, economic &

political models

Rights of Nature TribunalWild Law Judgments Project

Sharing Law

Rights of natureCommunity rights

Ecocide

AELA’s five core themes of work

Part 1Why is our legal system failing to protect

the ecosystems on which we depend?

Human centred Earth centred

Our current legal system is human centred – AELA is part of a global movement aiming to shift our

legal systems to also recognise the rights of the wider Earth community to exist, thrive and evolve

How current law is different from Earth laws

Earth JurisprudenceCurrent western legal system

1. ‘Great Law’ - laws of the natural world ‘higher’ than human laws

2. ‘Earth Community’ - community of interconnected subjects

3. Rights of nature 4. Living within ecological

limits 5. Encourages diversity in

human governance – cultural pluralism, indigenous knowledge, Earth democracy

1. Human laws are the highest authority

2. Nature is a commodity for human use – property, other law reflects this

3. Rights for humans, corporations, ships - but not natural world

4. Pro-growth ideology5. Western legal systems

often reject cultural diversity (eg frequent exclusion of indigenous knowledge and lore)

So lets talk about our use of the law …

Our legal system creates a ‘regulatory pyramid’, which channels people’s concerns about the environment ‘down’ to a narrow, limited range of legal ways that we can provide comments about what’s happening to our natural ecosystems.

We have few legal mechanisms that help us STOP unwanted developments that harm nature.

A range of existing legal powers and legal rights push local communities into a small space of allowable activism.

State and Federal laws can override local laws regarding the environment; our culture sees nature as property, not as having intrinsic rights; and large corporations have significant power and influence over the legal processes that favour development

Australia ‘inherited’ English law◦ First through the creation of English colonies (1788-1901) ◦ Then, after Federation in 1901, the same legal system formed the

foundation of our State and Federal laws Our legal system is very stable and brings many benefits

for human societies◦ It evolved around a number of fundamental (and human centred)

principles. The natural world is seen primarily as ‘natural resources’ which can be commodified and owned by people – eg private property rights, power of Governments to allocate distribution of land etc…

But our legal system does NOT recognise the intrinsic value of nature, or rights of nature - nor does it allow local communities to protect their natural environment in the face of State & Federal approved developments

Why do we have this legal situation?

Pre 1788 – Aboriginal Australia

The creation ofAustralia’sColonies

After 1901 our ‘Colonies’became States

Federation – the creation of Australia in 1901

States ‘gave up’ some of their powers and they were allocated to the new Federal Government

No mention of the environment No mention of local government in Federal

constitution Local government created by State government Local councils have limited powers (and this

differs from state to state) Local communities do not have ‘community rule’ State and Federal government ‘over-ride’ or

‘pre-empt’ local laws

Our national constitution

Why are people locking the gate?◦ They’re not legally allowed to say “no” to exploration or

extractive industries◦ The crown owns everything under the surface of the earth –

has total control Why are people defending their forests?

◦ Local communities currently have no legal rights to stop logging (all State government controlled)

◦ Forests have no rights to exist What about wildlife protection?

◦ Animals and plants have no legal rights of their own◦ We have very narrow laws that enable people to protect our

wildlife and ecosystems in certain circumstances; often these laws are overridden by development

Medieval law + corporate power = where does that leave communities?

Is there an alternative? Earth jurisprudence Earth democracy Global movements

Part 2Rights of nature and the ‘Earth democracy’

movement

Social movements – challenging status quo◦ Occupy, citizen movements challenging the G20 etc◦ Plethora of social justice groups, protests◦ Collaborative economy/sharing economy◦ Voluntary Simplicity, De-growth

Environmental movements◦ Earth democracy & Earth jurisprudence◦ Rights of nature

Global Alliance for the Rights of Nature Laws and movements around the world India – ‘Law of the Seed’ CELDF – community and nature’s rights

Why other communities are doing things differently

Rights of Nature provisions◦ CELDF – Rights of Nature local laws, USA◦ Ecuador 2008 – Constitution◦ Bolivia 2010 – Act for Rights of Mother Earth◦ New Zealand – rights granted to nature under Treaty of Waitangi

processes – eg Whanganui River, Urewera Forest, ◦ India – Navdanya, ‘Law of the Seed’, river rights for Ganges

Also worth noting – ◦ Legal recognition of non-human animals◦ Eg India recognising rights of cetaceans; has banned them in

theme parks◦ 2002 – Swiss Constitution recognises companion animals as

living beings with legal status, not just objects ◦ Not ‘earth centred’ as such, but does focus on rights for non-

human earthlings

Rights of Nature – global trends

Overview:◦ In the USA, local communities are saying “enough” to

unwanted developments. They are passing their own local laws, banning unwanted activities, and asserting community and nature’s rights

The next few slides set out:◦ The story of CELDF – the Community Environmental Legal

Defence Fund◦ The communities they work with◦ Today: 150 local level ordinances that assert community

and nature’s rights + movement to push for State level law reform

◦ How do they create these new laws?◦ The consequences of these local laws?

The CELDF model of social advocacy

The story of CELDF Began working within the

existing US legal system Won large number of

cases, very successful But felt they weren’t

saving anyone or anything

“The only thing environmental law regulates is environmentalists”

They realised ‘the regulatory pyramid’ forces communities to waste time fighting fights they couldn’t win in the long term

They’ve been watching the ‘box’ of allowable community activism getting smaller

Corporate power means many corporations ‘drive’ the laws that are put in place to benefit them

Met more and more communities who didn’t want to adjust the small details of the environmental impact assessment – they wanted to stop the developments from occurring in the first place

Realised they needed a new model for changing culture and law

Why CELDF changed its model of work

They assert self-government for local communities

They assert the right of local communities to decide what they will and won’t allow in their communities

They assert the rights of nature ‘to exist, thrive, evolve’

They strip corporations of their personhood rights in their jurisdiction

Local laws include several key aspects:

s.4(a) Right to water s.4(b) Rights of Natural communities.

Ecosystems and natural communities possess the right to exist and flourish within the Town. The residents of the Town of Wales have the inalienable right to enforce and defend those rights to protect all ecosystems, including but not limited to, wetlands, streams, rivers, aquifers and other water systems, within the Town of Wales”

s.4(c) Right to self-government

Example – Town of Wales, New York Community Protection of Natural Resources

The movement today 150 + local

ordinances 1 county ordinance –

Mora County, State of New Mexico

Working to combine local level groups to form state networks

There are several different ways local communities can make local law in the USA

Ultimately however, all local communities in the USA are similar to those in Australia, because:◦ State and Federal governments can override all

local laws, if the local laws go beyond their narrow powers

◦ Corporations try to influence State and Federal governments, to make law favouring the corporations

How does it work?

City of Pittsburgh, first bill of rights, stopped plans to frack under cemeteries◦ Corporations got state legislature to strip communities

of their only power ie where frack wells go◦ Communities passed community rights ordinance,

corporations gave up plans Chapleigh and Newfield, two communities in

Maine, challenged Nestle Water Corporation ◦ Bill of rights – prohibit corporate water withdrawals.

Nestle had established test wells; communities passed the laws; companies took test wells out and went away

Communities have stopped ‘sewage sludge’ being dumped on agricultural land

Benefits – communities have stopped developments

Social movement◦ Not just single issue driven – communities can set a framework

for protecting their local community across many issues◦ New strategies for organising communities around broad

environmental and social issues Changing the conversation about power Changing the conversation about law Directly confronting and challenging existing law via

democratically elected local officials making new laws◦ then “pushing upwards” to change State laws

Rights based discourse allows for all people to join a movement – not just ‘experts’ (which is what traditional regulatory reform actions have focussed on)

Benefits

Changing the conversation? The CELDF strategy

embraces legal conversations, by all citizens

Accepts legal challenges by State & Federal governments + corporations, as part of the work

Challenging existing law

“Historically, the most terrible things, war, genocide, and slavery have resulted not from disobedience but obedience” ◦ Howard Zinn

More than 150 communities have enacted CELDF-drafted community rights laws

Only a handful are facing legal challenge to overturn them

Several cases where state governments have sued their own communities to overturn local laws◦ State government acting at the request of industry◦ Several communities withdrew local laws before court issued

a decision◦ In other cases, the courts found that the communities were

pre-empted by the state or had violated the rights of corporations to conduct their activities

◦ CELDF don’t anticipate favourable rulings from courts at this stage

Responses in the USA? Government challenging local ordinance

Examples Colorado Oil and Gas Association v City of Lafayette,

Colorado◦ Lawsuit based on one claim – that the local law is pre-empted

by the state government’s Oil and Gas Conservation Act◦ Thus the legal challenge is based on the idea that the state

holds exclusive power over oil and gas, and local communities have no control over such extraction

◦ East Boulder Citizens United – grassroots group Vermillion et al v Mora County, New Mexico

◦ Two lawsuits have been filed to overturn the Mora County Community Bill of Rights Ordinance

◦ Corporations claim the ordinance challenges due process rights under the Constitution

Responses – corporation challenging local ordinance

Landmark case in USA (2014)

First time in US history that an ecosystem has filed to defend itself in a legal case

Elected officials in Grant Township passed a local law in June 2014 – asserting community and nature’s rights

PGE (Pennsylvania General Energy – an oil and gas co.) is suing the Township, challenging its ban on fracking

The watershed is ‘joining’ the Township’s legal case to defend its rights to exist, thrive and evolve

Case taken by township’s attorneys on behalf of nature

News article – 10 December 2014 - http://www.publicherald.org/archives/19582/invisible_hand/

Part 3Can the CELDF model work in Australia?

How local laws are made today Can we use the CELDF rights based model? How would it work? What are the risks? What are the benefits?

Can we use this model in Australia, and NSW in particular?

Created by State governments Local councils in most State jurisdictions

can make laws within a narrow range of permitted activities

Most state governments reserve the right to over-ride local laws that ‘conflict’

Slightly different arrangement for NSW

Local governments in Australia

Functions and powers given to local councils under the Local Government Act 1993 (“LGA”) and other legislation:◦ Service functions◦ *Regulatory functions◦ Revenue functions… etc

Council charter/guiding principles:◦ “to properly manage, develop, protect, restore, enhance

and conserve the environment of the area for which it is responsible…”

s. 23: Council may do all things as are supplemental or incidental to, or consequential on, the exercise of its functions

Local governments in NSW

Under the LGA councils can regulate activities in two main ways:◦ 1. By granting approvals for certain activities which cannot be

carried out without council’s approval (e.g. dispose of waste into a sewer, operate a caravan park, any other activity prescribed in regulation)

◦ 2. By issuing an order that a person do, or stop doing, something in certain circumstances (e.g. to cease conducting an activity where it is likely to constitute a threat to public health or safety)

Councils may adopt local policies specifying the criteria the Council must take into account in determining whether to give an approval or to give an order.

Where a local policy conflicts with the LGA or any other state legislation, the policy is deemed “void”

Local governments in NSW -Regulatory Functions

Councils in NSW do not have broad powers to make local laws on a range of issues◦ Councils in other states do have these broader

powers – eg Councils in WA, Qld In NSW – the activities for which Councils

can pass approvals or orders are very limited – only what’s listed

Comparing NSW with other states

s.1.3(3) “In carrying out its functions a local government is to use its best endeavours to meet the needs of current and future generations through an integration of environmental protection, social advancement and economic prosperity”

s.3.3(3) “A liberal approach is to be taken to the construction of the scope of the general function of a local government”

s.3.17 Governor may amend or repeal local laws s.4.99 – votes by the electorate on polls and

referendums

Brief comparison of NSW to the Western Australian Local Government Act 1995

Yes Because despite the differences between US

and Australian law, there are important similarities:◦ Local community laws can be over-ruled by State

and Federal law◦ Local communities can be challenged by

corporations◦ This approach is, at its essence, a civil rights

movement – it advocates that democratically elected local officials create community driven law reform

Could a CELDF approach work in NSW?

Several options◦ A council could use existing powers/authorities

under the LGA, to establish community and nature's rights and prohibit certain activities, Eg make an order under s.124 that’s broader than

such orders presently are and/or◦ A local council could pass a resolution to create

new powers for community decision making Section 15/16 of the LGA refers to constitutional

referendum - essentially that the council can only make certain changes to the electoral process with a vote of the people. This could be broadly interpreted …

How could it work in NSW?

So what happens if we get a local council to pass a CELDF style ordinance, asserting the community’s rights and saying ‘no’ to certain developments?

State will probably over-ride or NOT ALLOW the local law

Depending on the industries involved, they may lobby the state government too

Legal action? Arguable that the State Government wouldn’t need to take legal action; just disallow the local law◦ Example – Fremantle Council’s attempt to pass a law

banning plastic bags. This law has been stopped from entering into effect by the State Government

What happens if a local council makes a law outside its power in Australia?

Community organising to identify the healthy future everyone wants

Local councils asserting local and nature’s rights ‘Changing the conversation’ about community

rights, environmental health and our legal system in Australia

Community strategies include media advice, fact sheets, blogs, articles in newspapers◦ Raising awareness of current legal system; directly

challenging it Ultimately – pushing to transform our legal

system

Benefits

It’s important that we create a change in our thinking

We need to stop asking Governments ‘permission’ to protect our precious environment

We need to assert the future we want If we create local laws, and State governments try

to override them, the ‘discourse’ or ‘conversation’ would include these types of arguments: ◦ “We went through a democratic process; we want to

protect our rights – the State government is denying us our rights”

◦ “Our own State government is denying us the opportunity to make community supported local laws”

Changing the conversation

Why go through all this, if the State Government can over-ride these local laws?

Few major ‘shifts’ in society have been handed to us by governments

They have been fought for by citizens When you don’t directly challenge the law,

you are validating it One day, if enough of us push to change the

law – peacefully and with the principles of Earth democracy supporting us – we will change the legal system

Sounds like an awful lot of work …

Abolition of slavery, US 1865

Votes for women - 1902 Women marched, chained

themselves to sites of ‘power’ Voted, were jailed and

trialled And they won in 1902 - Australia was the

first country in the world to give women both the right to vote in federal elections and also the right to be elected to parliament on a national basis.

(New Zealand granted women the right to vote in 1893, but did not allow women to be elected to office).

US civil rights movement

1967 referendum to recognise indigenous Australians as citizens in the constitution

Part 4Where to from here?

This approach to community law making is new for Australia

For groups interested, we can try a range of strategies

What AELA can offer re support◦ Information workshops, strategy meetings◦ Ongoing advice and support◦ Part of global network, work with CELDF

Where to from here?

1

• Local champions – you’ll need a small organising or working group, to be catalysts/organisers; liaise with AELA/CELDF.

• Identify allies in that jurisdiction (business, unions, wider community)

2• Legal strategy – content of draft ordinance; possible processes and risks?

3

• Community engagement – How do you start these conversations? How do you get more people involved? Who do you get involved? How many people do you want involved? Present alternative economic strategies for your region?

4

• Political engagement – start conversations with local council representatives; lobby for local laws. Conversations with State Government when the time is right?

5

• Communications strategy – factsheets, blogs, media releases, ‘telling the story’

• Highlighting injustices; highlight innovative approaches around the world

Multiple strategies

Discuss within your primary group/working group Develop your own local community strategy

◦ Understand your local council – it’s powers and local officials◦ How engage others in the community? Who to engage? NGOs, grass roots groups, businesses

with similar values etc Draft local laws with AELA Prepare materials relevant for your region, to tell people about these ideas and the

model law◦ Example: a 2 page fact sheet that sets out why the natural ecosystems are important to the

community; the impacts of destructive practices; what the options are for stopping these practices and how the community will be better off

◦ A petition for local people to sign – to show their support for the relevant actions, and passing a community law

◦ Media campaign Begin conversations with schools, businesses, indigenous people, church groups,

others – build your network of supporters Begin conversations with local councillors

◦ Initial conversations (AELA can help)◦ Work with supportive councillors to develop specific strategies for proposing new law

making/resolutions/laws themselves◦ Prepare for the hard yards – months, years of conversations◦ Present councillors with letters of resignation if they won’t support their community◦ Organise candidates for the local elections◦ Promote the discourse – use the language, promote the ideas, use the media

Strategy options

Michelle Maloney [email protected] www.earthlaws.org.au Facebook and twitter link can be found on

our website

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