We Need Wild Law in the Gulf of Mexico
There’s a big article in the Toronto Globe and Mail today about the toxic flood of legal actions that’s likely to result from the toxic flood of oil in the Gulf of Mexico. I find myself both weeping and enraged at what’s going on down there — and as I read about all the claimants who are likely to sue, I was swept with a wave of fury that the shrimpers and whale-watchers can sue but the shrimp and the whales cannot. Who speaks for those lumps of oil that were once beautiful, elegant pelicans?
Giving legal rights to the natural environment and its creatures is the fundamental idea of what’s known as "wild law." I want to get an interview on wild law with someone like Cormac Cullinan on this site, but I haven’t managed to arrange it just yet. In the meantime, however, I’ve written about this before, in a Halifax Sunday Herald column of January 2007. Because the horror of the Gulf spill has made it timely again, I’m re-issuing it now. Here it is….
January 8, 2007
WHEN DOES A TREE HAVE RIGHTS?
By Silver Donald Cameron
Hardly anyone noticed it, but one of the most important events of 2006 may prove to have been the passage of the Tamaqua Borough Sewage Sludge Ordinance, a law enacted by the 7,000 brave souls who inhabit the community of Tamaqua, Pennsylvania.
Tamaqua’s revolutionary ordinance does two things. It denies the right of corporations to spread sewage sludge as fertilizer on farmland, even when the farmer is willing, and it recognizes natural communities and ecosystems as legal persons with legal rights. It is among the first "wild laws" to be passed anywhere in the world.
To understand the importance of wild law, consider this. The law recognizes as "jural persons" various bodies that are abstractions — corporations particularly, but also governments, foundations, universities, churches and other groups. These entities exist in our collective minds — you can’t touch them, smell them or see them — but they all have legal rights, particularly property rights.
Yet other entities that are absolutely real in every sense — rivers and trees and animals — have no legal rights at all. If Foulwater Mining Corp. dumps tailings in the river, the downstream town of Feckless Flats can sue for damage to its water supply. Both the corporation and the town are fictions, but they have standing in the courts. The river does not and neither do the plants, fish and animals in the stream.
What if they did? A decade ago, researching The Living Beach, I ran across a brilliant 1971 essay by Christopher Stone, a law professor at the University of Southern California, called "Should Trees Have Standing? Towards Legal Rights for Natural Objects."
Stone’s essay began at the dividing line between property, with which we have no ethical relationship, and things-with-rights, with which we do. There is no "natural" boundary between the two, though we usually think there is. But, wrote Stone, the history of Western law shows a steady migration of items of property into the category of things-with-rights.
In Roman law, a man had absolute power over his children. He could even put them to death. In 1858, a U.S. court could say explicitly that "a slave is not a person, but a thing." Natives, Jews, Chinese, women (especially married women), animals all of these have at various times been considered property, and have been denied the most basic of rights. But today, all of them have a substantial basket of rights.
Stone argued that natural objects should have at least three basic rights: the right to institute legal action at their own behest; the right to have injuries to them taken into account in determining legal relief; and the right to benefit from that relief. Since trees and birds and beaches cannot exercise those rights themselves, individuals or groups should be able to apply to the court for legal guardianship, and for the right to litigate on behalf of the natural object.
Stone was arguing for an ethical relationship with nature, and pleading that we start to think in less "homocentric" terms. We are not protecting natural objects for future human generations; we are protecting them for themselves. The environment does not exist for man; it may be that man exists for the environment.
In 2003, a South African lawyer named Cormac Cullinan expanded these ideas in a book entitled Wild Law: A Manifesto for Earth Justice. Humans are members of an earth community, Cullinan noted, and we cannot ignore the rights of that community, which makes our own existence possible. We need a new body of law whose first priority is to protect the ecological community in which we live.
This is not a cozy idea. Under such a regime, Nova Scotia Power could be sued on behalf of polar bears, whose habitat is being destroyed by the degradation of the air. Since NSP’s coal-burning plants are among Canada’s worst polluters, the bears might win the case — and you and I would have to find other ways to generate electricity. That would be "wild law" with a vengeance.
Wild law could give ocean-bottom plants the right to challenge Clearwater’s bottom-trawling, or a bog the right to an injunction to block a drainage project. It might allow trees to demand that this newspaper be published only electronically.
Wild law will not soon gain that kind of traction — or will it? Without rapid and radical change, the days of our own species may be numbered, and the fundamental justice and sanity of wild law is indisputable. Once begun, the process of legal change can move surprisingly quickly. Twenty years ago, who would have thought that an almost universal ban
on smoking in public lay within the realm of possibility?
Peer deeply into the sewage sludge of Tamaqua. It may contain the future of the law.
Visit Silver Donald Cameron’s website at www.silverdonaldcameron.ca