Warrior Lawyers: Review by Chris Wood
Chris Wood is a fine environmental writer with a particular interest in water. His most recent book is Down the Drain: How We Are Failing To Protect Our Water Resources. He recently published this careful and intelligent review in The Antigonish Review, and I wanted to share it with you. My gratitude to The Antigonish Review: it’s reprinted with their permission.
Warrior Lawyers by Silver Donald Cameron (Green Interview Books. 338 pages.) Paperback US $19.99, Kindle $7.29 on Amazon
For eight seasons, the immensely popular ABC sitcom Modern Family has drawn laughs from millions of North Americans by casting effeminate, flighty, gay character Mitchell Pritchett as an ‘environmental lawyer’—mocking his work along with his manhood as the least consequential legal role imaginable.
Its writers should meet Tony Oposa or Pablo Fajardo. Oposa got the Philippine government to start to clean up Manila Bay—despite having a price on his head and his best friend murdered on his doorstep. In Ecuador, Fajardo is still fighting after 20 years to extract compensation from international oil giant Chevron-Texaco for the continuing devastation it wreaked on lives and ecosystems in that country; he’s lost both a best friend and a brother to murders intended to deter him.
In much of the world, environmental lawyering can be a deadly vocation. Everywhere it can seem like a David vs Goliath proposition. Hence the title of Silver Donald Cameron’s 18th book: Warrior Lawyers (Green Interview Books, Halifax, NS).
The volume’s 338 pages contain an opening thirty-page essay by Cameron, followed by edited transcripts of his interviews with seventeen “lawyers for the earth” from nine countries. They’re much more than a needed corrective for mass media’s misleading typecasting. By turns intellectual page-turner and fireside expert tutorial, the book canvases the ways a better understanding of the law—what it is, where it comes from, how it is made and how it can be wielded—might help our species avoid the existential challenges we have created for ourselves.
As a warranty lawyer might put it, those challenges include but are not limited to: a global wave of extinctions, large-scale toxic pollution, contaminated home sites, poisoned children and barren wildlife, decay of earth’s life-supporting ecosystems, and literally over-arching all of those, the steadily rising concentration of hydro-carbons in the air that is cranking up the planetary heat. But also, and vitally, they include the neo-liberal economy and its legal instruments that guide the human activities causing those harms.
The subject—broaching law, science, the alphabet-soup of international agency acronyms—could easily be leaden. But Cameron is an old pro and readers are in very competent hands. He had me at his opening epithet: “Peer deeply into the sewage sludge of Tamaqua. It may contain the future of the law.”
This turns out to be a quote from one of Cameron’s own earlier articles—an early expression of the Cape Breton-based journalist and author’s long fascination with the exigent interplay of natural place, peoples, and cultures (see also An Island Parish, or for that matter the more irreverent Outhouses of the West, with photographer Sherman Hines).
In his essay, Cameron lets slip a biographical detail that we oddly share: he briefly toyed with the idea of becoming a lawyer himself before turning to journalism (so did I). And his book is arranged, loosely, in the form of a courtroom performance: an opening argument, followed by the supporting evidence of expert witness testimony.
Those witnesses range from lawyers pursuing specific pertinent individual cases like Ecuador’s Fajardo, or Saskatchewan’s Kowalchuk—who represents two plaintiff groups fighting fracking in New Brunswick—to others with lofty goals of achieving systemic change at a single stroke. British barrister Peggy Higgins is seeking nothing less than the creation of a new international crime of ecocide (her odds of success are better than you might think).
Among the multinational group, Cameron’s witnesses address many of the most prominent themes at the crosshairs of environmental activism and the law—which they view from diverse perspectives. Oposa and others value its ability to force society—or at least defendants in a lawsuit—to pay attention to a story, typically about injustice or a harm suffered, and its supporting evidence. Higgins sees it is a way to force different choices on top national and corporate decision-makers. Mumta Ito, who is trying to win enough grassroots support to force the European Parliament to consider embedding its citizens’ right to nature in legislation, appears to see the law as a radiant manifestation of subconscious individual and historic social dynamics.
But there are recurring themes.
The parallels between legal argumentation in making a case and story-telling, feature in many of the interviews. A legal action, Oposa tells Cameron, “tells a story in a manner that is organized, orderly, logical and backed up by evidence,” and forces society to pay attention. If the suit fails, Cameron observes, “he can appeal—and the story will be told all over again. “A lawsuit undertaken in this spirit cannot really be lost.”
He also speaks with John Borrows, an Anishinaabe professor of law at the University of Victoria, who makes the telling point, as Cameron summarizes it, that“Canada has three legal traditions, all recognized in the Constitution: the English common law, the French civil law, and the legal systems of the First Nations. And all of them rest on stories. What are known as ‘cases’ and ‘precedents’ are fundamentally stories.”
What we need, Cameron and his witnesses argue, are legal stories more reflective of our interlocking crises of biological survival and political and economic legitimacy.
A good place to start would be to pay more attention to that indigenous thread in our legal tradition. South African lawyer Cormac Cullinan cites the power of indigenous cosmologies to correct a central error of the western European/colonial and neoliberal modes of thinking. “If one looks at the significant crises of our time, most of which are environmental, they arise because of human behaviour,” Cullinan tells Cameron. “And that behaviour is based on the false understanding—the delusion—that we are separate from Nature. To change that, it is necessary to shift the consciousness of the dominant industrial civilizations to the recognition, which has existed for most of human history, that our well-being depends on maintaining healthy relationships with the other members of the community, both human and other than human.”
Cullinan advocates for a new form of indigenous-inspired law—“wild law” or “earth jurisprudence”—that’s rooted in the recognition that the laws of nature supercede those of humanity. As Australian lawyer Michelle Maloney puts it, “wild law invites mainstream, European-style law to open up its heart and soul to invite in the older knowledge systems, and the older peoples.”
But warrior lawyers need more than shifts of consciousness. They need legal swords and shields. And Cameron’s witnesses do not disappoint. From Oposa’s power of persistent story-telling, to Dutch lawyer Roger Cox’s stunning victory over his own government (Cox successfully argued that the Dutch government couldn’t simultaneously declare climate change an active threat to its citizens, and decline to address it by failing to reduce the country’s greenhouse gas emissionss) the book is fairly packed with legal how-tos and gambits.
Higgins may be going for the legal equivalent of the United States’ ‘mother of all bombs’, recently dropped on Afghanistan. She defines ecocide as “extensive damage or destruction to, or loss of ecosystems of a given territory”—Chevron’s decades-long spills in Ecuador, or Canada’s fishing the Atlantic cod to near-extinction, are examples.
Higgins notes that documents drafting the 1998 treaty known as the ‘Statute of Rome’, which created the International Criminal Court, originally included a prohibition against ecocide. It was removed at the last minute as “a result of corporate lobbying by oil, genetic modification, and nuclear interests,” Higgins says. She proposes to put it back in. Creating an international crime of ecocide would allow signatory nations to put individual political and corporate leaders who commit acts of ecocide—even those from non-signatory nations—on trial in their own courts or before the ICC in the Hague.
There is radical stuff here.
American attorneys Thomas Linzey and Mari Margil make no secret of their desire to “pick fights” with state governments in order to dramatize to the public how the existing “system has nothing to do with environmental protection. It has to do with something different, which is about legalizing harm,” as Linzey puts it.
Margil cites a Colorado Governor who at the time of the interview was suing communities in their own state that had enacted local bans on fracking. “When your own governor is saying that he’s going to sue his constituencies, his communities, the people who put him into office, when they’re trying to protect themselves from something that is a very real threat—that makes things very clear to people,” Margil says.
As Cullinan, Borrows, and others point out, once you accept that the planet’s living global ecosystem is superior to people in biology, and the urgent necessity of reflecting that in law and rights, the entire idea of private human ‘property’ becomes dodgy. How can we ‘own’ something of which we are only a dependent part? If Higgins gets her way (it could start with one nation that’s already a party to the Statute of Rome putting it forward for others to endorse), Prime Minister Justin Trudeau might some day be subject to prosecution for approving oil pipelines that would contribute additional greenhouse emissions to the atmosphere.
Warrior Lawyers is one of those books that anyone concerned about our species’ direction could profitably, as well as enjoyably, read. But it is likely to appeal mostly to those who are already active in any of the countless skirmishes, long marches, and pitched battles that constitute humanity’s efforts to rescue itself.
In particular, it should feature on the reading list of every lawyer-in-training, not only those pursuing environmental law. “I would now say to my callow self,” who rejected a career in the law, Cameron writes in the penultimate paragraph of his essay, that “law could be a compelling, totally fulfilling career choice, but you must… nurture your warrior nature, and choose your mentors with wisdom. They are out there. Think how marvelous it would be to study with these people, to article with them, to work as a colleague with them, to practice with them. Think how you could use the tools you’ll acquire from them. What could be better than that?”
The title’s potential appeal to student environmentalists is, in fact, part of Cameron’s novel and transparently disclosed business model for supporting his work as a reporter of hopeful stories and presenter of inspirational figures on his Green Interview website, a film documentary, and this book—which is being distributed by a company that specializes in academic markets. While it’s the subject neither of the book nor this review, the problem of funding constructive journalism is acute in Canada; Cameron deserves congratulations for cobbling together a creative answer.
But this collection of friendly interviews is not more than what it is either. It is not a textbook, drilling down into the broader research around any of the topics it touches on. And Cameron is much more of a friendly counsel, leading his witnesses gently through their views, than sharp-eyed cross examiner. He offers no pushback when Ito describes her reliance for legal insight on the fringe theories of a German psychologist, Bert Hellinger, who among other ideas, excuses father-daughter incest as the fault of sexually inattentive wives and mothers.
Similarly, Linzey and Margil’s doctrine of community rights can be used for less savoury ends than deterring fracking. A community in Alabama won its independence from a regional school district earlier this year for motives that a court frankly conceded were racist, exclusionary and “assail the dignity of black schoolchildren.” The book does a good, but not comprehensive, job of canvasing promising legal tactics for restoring the balance of justice between Earth and humanity, sustainability and development. It appears almost unaware, for example, of the wide application in the United States, India, and elsewhere, of the so-called ‘public trust’ doctrine—a legal theory of generational equity with roots in imperial Rome that can be implemented with a simple act of legislation.
And both the text and interviews genuflect before some shibboleths of the environmental left without the critical examination they deserve. In particular, the book’s reflex condemnation of investor-state dispute resolution mechanisms in trade agreements, and of bottled water purveyors, are anti-corporate rote that is unsupported by the actual record of such trade panels, or the minimal threat posed by water in bottles (the threat comes from the bottles, the great majority of which contain a beverage other than water).
And at the risk of appalling many in Cameron’s likely audience, I admit I am personally not a fan of the ‘human rights’ line of reasoning on which several of his subjects rest their theories of an environmental duty of care. The contention that we humans enjoy some sort of special entitlement or exemption from the laws of nature denied to other creatures has always struck me as absurd on its face, not to mention unsupported by any evidence in nature.
What such a conceit does do, is feed precisely that delusion of our own specialness and independence from earth’s other living organisms that Argentinian Daniel Sallaberry indicts. “We have had two thousand years of culture in which humans are the owners of Nature,” Sallaberry says. “And laws were established for the use and enjoyment of human beings. By placing humans at the centre, law adhered to this cultural concept.”
It is far more logical to start with the idea, as Sallaberry adds, that “Nature, animals, have rights. And we are beginning to recognize this change in perspective.” A few jurisdictions are beginning to do so in law, recognizing the ‘rights’ of the living planet and its critical components such as river systems in statute and even constitutional language. If it buffers the shock of giving non-human life that recognition, we instead might cast these as the non-negotiable minimal ‘necessities’ of our continued existence rather than moral entitlements. After all: your next breath and mine depend on the ecosystems that provide our natural security. Does any interest override that one?
But these are, really, quibbles. Cameron and his interlocutors are right on the essentials. No ‘issue’ on the political agenda—not America’s Trump or Europe’s Brexit or Asia’s Kim— is as threatening to human existence and prosperity as our failure to reign in our own ravenous consumption of the Earth. In the effort to do so, there are several wickedly large problem areas. One is the dominant neoliberal economic system. Another is the decay of democratic legitimacy in much of the world. But a third is the law—whose stories, told with conviction and evidence, can alter the course of both.
We will need our warrior lawyers. Warrior Lawyers is the book to incite them.
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