Rage Against Compromise: The book Warrior Lawyers and its complimentary film Green Rights shows how creative legal interpretation of policies can move the needle.
Green Rights: The Human Right to a Healthy World, 2016, film directed by Chris Beckett, written by Silver Donald Cameron
IN HIS COLLECTION of Interviews--Warrior Lawyers and corresponding DVD, Green Rights --author and long-time Canadian journalist Silver Donald Cameron dispenses a heavy measure of hope that a grassroots movement, largely spearheaded by lawyers is confronting the current climate crisis. The 16 lawyers interviewed, hailing from every corner of the globe, are not only advocating for constitutional entrenchment of nature rights in their respective countries, but are also raging against the machine of compromise.
According to lawyer Mumta Ito, founder of the International Centre for Wholistic Law in Scotland, current environmental law is designed to support economic growth rather than to protect nature. When an administrative tribunal, such as Canada's National Energy Board, or our courts consider the environmental impacts of an industrial development, nature is invariably compromised in favour of corporate profits.
The law and its institutions that regulate extractive industries merely perpetuate the myth that the infrastructure and economic activity associated with the continued burning of fossil fuels is in the public interest. To supplant our property-based economic paradigm, Ito envisions the development of a new legal framework and the adoption by the EU of a directive that recharacterizes nature as a rights-bearing subject of the law.
And while Ito and other warrior lawyers encourage individual nations to entrench green rights in their constitutions, on a global scale, another UK lawyer, Polly Higgins, advocates for the inclusion of ecocide as a crime against humanity.
Ecocide is "damage, destruction and loss of ecosystems so extensive that peaceful enjoyment of a territory by the inhabitants is severely diminished or lost." This so-called super-law, that overrides domestic laws, would extend toward all living things and not just human inhabitants. First coined in reference to the defoliation of jungles by Agent Orange during the Vietnam War, ecocide, more recently, has been perpetrated by tar sands extraction in the boreal forest of Northern Alberta and Saskatchewan, and by massive oil spills in the Niger River Delta. However, Higgins also warns that expanding the International Court of Justice's (ICJ) mandate to include prosecution of ecocide might not provide the panacea to redress ecological degradation.
In a class-action lawsuit launched on behalf of hundreds of injured Indigenous peoples in the Lago Agrio region of the Ecuadorian Amazonian rainforest, the $9.5 billion judgement awarded against defendant Chevron has proven to be a hollow victory. Chevron has resisted paying, and the enforcement of the judgement has become mired in further protracted legal proceedings. When Cameron asked whether the award is sufficient to remediate the devastation in Lago Agrio, attorney for the plaintiffs, Steven Donziger conceded,"... there is no blueprint to cleaning up a delicate ecosystem that is affected by this much oil." ICJ enforcement of ecocide prosecutions would be no less problematic. But while the deterrent effect of the 2011 Lago Agrio judgment upon Chevron has been negligible, the lawsuit has significantly raised public awareness of how environmental degradation translates into a violation of human rights and the urgency to protect the rights of future generations to a healthy environment.
Without exception, these warrior lawyers treat environmental protection as a social justice issue. They believe that the judiciary--in its capacity to consider and weigh scientific evidence--is better positioned than the legislative and executive branches of government to protect the ecosystems that sustain all life from the ravages of industrialization.
Even in the Philippines, where the judicial system is fraught with enforcement challenges, attorney Antonio Oposa Jr. has prevailed upon the courts to recognize the principle of intergenerational responsibility --that the present generation has a responsibility to preserve the environment for future generations. "Everyone needs land, air and water [laws] to live," says Oposa, whose penchant for simplifying his message about environmental rights is rooted in the time-honoured tradition of story-telling.
Oposa harnesses the law as an instrument for change precisely on account of lawsuits' dramatic and educational attributes. Every legal challenge undertaken by Oposa, such as illegal logging and cleaning up Manila Bay, is redolent of a biblical David vs Goliath battle of wits, which resonates with ordinary Philippine citizens.
In the same vein as Oposa, Cameron and director Chris Beckett have broadened the appeal of their "green rights" agenda and astutely targeted ordinary citizens with their entertaining Green Rights DVD. While the video is largely a distillation of the interviews transcribed in the book, its focus is narrower, emphasizing how Canada and the United States have lagged behind more than 110 other nations whose constitutions have entrenched the right to a healthy environment. In Canada, an overlap in federal and provincial jurisdiction over the environment is widely considered to be a barrier to elevating environmental rights to constitutional status.
The video documents the NS case study of Northern Pulp discharging toxic effluent onto the lands of Pictou Landing First Nations. This example spotlights the plight of Canada's Indigenous peoples whose struggles with environmental degradation remain unaddressed due to jurisdictional complexities. While Ottawa has jurisdiction over matters concerning First Nations, licencing and oversight of most industrial developments resides with the provinces.
In 2010, Pictou Landing First Nation sued Northern Pulp, its affiliates and the Province of Nova Scotia for damages and demanded that its licence to operate be terminated. In the meantime, a rupture in the company's treatment lagoon finally spurred the Federal Department of Fisheries to prosecute Northern Pulp.
In 2016, the company pied guilty and was fined $225,000. For many industries with less than exemplary environmental track records, the imposition of fines, even in the hundreds of thousands, is considered to be merely the cost of doing business. Northern Pulp's operations are not slated to be shut down until 2020.
A constitutional amendment entrenching green rights would resolve jurisdictional disputes, as licencing of industry and environmental protection legislation, at both federal and provincial levels, would be subject to such environmental rights. Given the fact, however, that court resources, across Canada, are already stretched to the limit, the endowment of green rights to citizens is certain to result in even further delays in court proceedings and an additional burden in the climate crisis.
Apart from anticipated court delays, there is much opposition to the prospects of judicial activism and further erosion of the principle of parliamentary supremacy. In the Netherlands, the Dutch judicial system has been extraordinarily receptive to the urgency of government honouring its international commitments to reduce GHG emissions. However, the state has appealed against the landmark Urgenda decision on the grounds that the court exceeded its traditional adjudicatory role as an interpreter of the law. The Urgenda Suit was launched by lawyer and author Roger Cox. Through crowd-pleading on behalf of nearly 1,000 plaintiffs, the court ordered the Dutch government to comply with its Paris climate accord commitment to reduce its GHG emissions by 25 percent, and not by its subsequent compromising target of only 16 percent.
Expanding the mandate of administrative tribunals might address the growing challenges of public participation in environmental governance. Transparency in the appointment of board members must be grounded on merit rather than cronyism and on an appreciation of local concerns with respect to industrial developments. These are critical factors to be considered in alleviating the intensifying anxiety of people whose lives are increasingly being upended by extreme weather events and the subsequent politico-economic uncertainty precipitated by the migration and influx of environmental refugees. Ordinary citizens, like warrior lawyers, are raging against the machine of compromise and should not be relegated to the sidelines to marvel at the inspiring stories of legal victories, but must be empowered to play a meaningful role in the retooling and transitioning of our global economy and the embracing of a more sustainable and just future.
Barbara D. Janusz is a lawyer, educator and the author of the novel, Mirrored in the Caves. She has widely published environmentally themed short stories, creative non-fiction, essays and poetry. She resides in Crowsnest Pass, Alberta.
Purchase Cameron's book and DVD at: silvei-donald-cameion.myshopify.com. Organize a screening of the film through gieeniights.com.
Review essay by BARBARA JANUSZ
Caption: (Left and top) Elsipogtog, New Brunswick: The summer of 2013 saw Indigenous people with French and English settlers face down the police, go to jail and dive in front of trucks to stop SWN Resources from fracking their land. As a concession to two lawsuits by citizen alliances seeking clarification on government's duty to consult with landowners and First Nations about resource development, the NB government imposed a moratorium on fracking. In 2016, SWN Resources closed their NB offices.
Caption: Manila Bay, Philippines: Antonio Oposa Jr. (of the 1993 Oposa vs Factoranfame) established the precedent of affording current and future generations with environmental rights. Oposa's legal victories to stop marine pollution and illegal logging of virgin forests are legendary and raise public awareness about the environment.
Caption: After 30 years of defending the Pacific ecosystem from factory salmon farms, marine biologist, Alexandra Morton hit a brick wall. DFO's counter argument that there is no evidence of farms or farmed Atlantic salmon displacing whales, infecting wild Pacific salmon or causing algal blooms was refuted by Justice Bruce Cohen who presided over an inquiry, in 2012. The inquiry also deemed that provincial laws accommodate industry (the economy) at the expense of marine ecosystems and people reliant upon fishing for their livelihood.
Caption: Silver Don Cameron in Buenos Aires, Argentina: When people have environmental rights, they use them, and they can win big battles. The Matanza-Rachuelo River Basin has been polluted for over 200years. In 2004, health care worker Beatriz Mendoza lead a group of residents to file a lawsuit against the national government, the Province of Buenos Aires, the City of Buenos Aires and 44 companies. The "Mendoza case" went to Argentina's Supreme Court, which ultimately ruled that government and industry had infringed the residents' right to a healthy environment.
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|Article Type:||Book review|
|Date:||Sep 22, 2017|
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