By Edson Krenak
Edson Krenak Naknanuk is an indigenous activist, writer and doctoral researcher at the Vienna University (Austria). At the organization Cultural Survival, he has worked with many indigenous peoples in the Americas, and coordinates advocacy and fund programs in Brazil.
Introduction
Recently the academic world has used an arsenal of new concepts and approaches to understand the phenomena of climate change and global warming, as the latter represents a real threat to human life and many other species on the planet. The Anthropocene, for example, is one of these concepts that describes a fundamental rupture in human history on the planet. According to this idea, the way humans modified their relationship with the planet was based on a culture-Nature dualism given by colonial processes that began in the fifteenth century, with the conquest of what came to be called the Americas.
In the 1920s, one of the greatest symbols of capitalism, Mr. Henry Ford wanted to build an industrial utopia in the middle of the Brazilian Amazon forest, but his arrogance and the inability of his engineers and scientists from Michigan (USA) to deal with the local multispecies made them lose a fortune of investments. Mr. Ford wanted to create a vast rubber monoculture on the Amazon, but his plantations and workers had the same fate as his project: a tragic end. The jungle reacted with pests and diseases that had been kept hidden with plants for millennia, as planting in monoculture fields they unlocked those diseases and it infested everything around and collapse the capitalist utopia.
Without deep and respectful respect for her, Nature, it is impossible to protect her.
These colonial processes of expropriation of goods and lands, and mischaracterization of the other (i.e. Indigenous Peoples) would culminate in even deeper ideas and programs of division and separation of the human being from their natural habitat. The Enlightenment, Industrialization, the slavery of black and Indigenous Peoples, and extractive policies are some examples of the colonial processes. In the field of law, one of the legal consequences of these processes was the creation of the Western concept of private property and an oppression system of laws and governance policies.
To combat these colonial processes, Indigenous Peoples have developed several defense and resistance strategies. From a geographical and war point, they fought at the expense of millions of lives and Indigenous Peoples who suffered genocide, annihilation, cultural and social erasure and invisibility. From the ontological and epistemological point of view, they began to criticize the relationships of white men with Nature - the philosophical and scientific scheme of the subject-object - in which the environment can be used, manipulated, transformed and eventually destroyed for the well-being of a single species.
At the heart of this ontological and epistemological struggle is the concept of the personhood of Nature, or the rights of natural entities such as rivers, mountains or forests to have a status as a legal person. The thesis of Indigenous Peoples with this ontological weapon is simple: to defend the right to life of other species. The reason is equally simple: as we are all interconnected to the planet, the well-being of other species is also the well-being of human beings. The opposite is no less true: the destruction of other species is a serious threat to the life and well-being of human beings as well.
Nevertheless, Nature is not despised by the colonial white man, on the contrary. Nature is seen as a source of resources to be extracted, plucked, and destroyed to create a world good for mankind, She (Nature is feminine to many Indigenous Peoples) can be commodified, monetized, commercialized, so transformed into private property and marketed because of the resources and services She provides (We lack room to discuss this point more deeply).
Nevertheless, Nature is not despised by the colonial white man, on the contrary. Nature is seen as a source of resources to be extracted, plucked, and destroyed to create a world good for mankind
I. But if Nature is so precious, why is not it protected?
If the environment is essential to the well-being of human beings, why is it subjugated and destroyed? To answer these questions, I need to answer a more important question: Why environmental laws do not guarantee or protect the rights of Nature?
Needless to say, turning Nature into a thing, an inexhaustible (sic!) source of resources to be extracted, traded, violated as a living being, ruined the balance and role of the environment in providing well-being to all creatures, even human beings. This process that has several facets, industrialization, consumerism etc., caused the climate crisis and accelerated natural disasters on a scale never seen before, bringing death, suffering and hunger to living beings. In this new and scary scenario, the white man woke up and began to talk about protecting the environment, but in the context of the same laws by which they transformed Nature into objects of market. Protecting the environment is a matter of justice! We need environmental laws! But I ask: Why have these laws failed? Why are environmental laws insufficient and inefficient to protect the environment?
There are at least three reasons why the environmental laws of the West fail to do justice to Nature and the environment.
First, the environmental laws of the West are utilitarian (as well as the public policies that come from them and the culture and educational system that feeds them). The utilitarianism of Western society invented two false ideas: a) the purpose of human life is work (sic Marxists!) and b) the idea of sustainability. These two ideas conceive and give Nature an economic value. Work, Marx said, is the way human beings relate to Nature and through work, Nature is transformed to create more value.
The idea of sustainability is very fashionable because it sells illusions, lies, because it promises more benefits for everyone in economic terms. People are formed for the labor market, and this organizes itself to meet private interests that want prosperity without limits, and high standards of living (health services, education, mobility, goods, etc.) for as many people as possible (human!). Because of the work and manner of sustainability, Nature is valuable for it provides the service that creates wealth and raises living standards for humans. Natural resources continue to be exploited. Human labor is therefore to create sustainable benefits while preserving Nature as a resource for an economy that creates wealth and prosperity. We already know that this is a fallacy because consumerism and the rampant pollution of Nature are also part of the market, and of a large-scale, unequal and oppressive world.
The idea of sustainability is very fashionable because it sells illusions, lies, because it promises more benefits for everyone in economic terms.
Secondly, the legal system is anthropocentric (A similar argument was developed by L. J. Kotzé). All the international laws and treaties I have been investigating have that aspect in common. Most recent instruments such as the Stockholm Declaration (1972 – celebrating 50 years! ), World Charter for Nature (1982), Rio Declaration on Environment and Development of 1992, Johannesburg Declaration on Sustainable Development of 2002, Paris Agreement 2015, and at the domestic level, as in the case of my country (which was once a champion of sustainability!), the Brazilian 1988 Constitution, and the most recent laws as Brazil's Environmental law: (New Brazilian Forest Code (Law 12,651 - 2012)). All of these postulate laws and legal mechanisms that are completely centered on mankind. In other words, they are laws designed to protect the human lifestyle, and human forms of life, other species are ignored. Here are some examples:
o Stockholm Declaration Principle 3. ‘Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights [and] the right to life itself' Right to development.
o Rio 92 Declaration, page 14: States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health
o New Brazilian Forest Code/Law 12.651/Article 3: Preserve its forests and other forms of native vegetation, as well as biodiversity, soil, water resources and the integrity of the climate system, and protecting the soil and ensuring the well-being of human populations; This blatant dissonance and inadequacy of legal systems in protecting laws was perceived by many, as B. Richardson says:
“Some of our most sophisticated legal mechanisms rest upon fictional and assumptions about human behavior. Concurrently, modern environmental law is increasingly blinded by ideological palliatives such as "sustainable development" that help us rationalize our continuing encroachments upon the planet”. ('A damp squib: Environmental law from a human evolutionary perspective', Osgood Hall Law School Comparative in Law and Political Economy Research Paper Series, 2011).
Another even more emphatic voice states: (this system of laws exists to) "justify and increase the dispossession of Indigenous Peoples and other marginalized groups; corporate perpetuate neo-colonialism; and intensify the asymmetrically distributed patterns of advantage and disadvantage that prevail in society, while deepening inter- and intra-species hierarchies." (A. Grear, 'Deconstructing Anthropos: A critical legal reflection on "Anthropocentric" law and Anthropocene "humanity"', Law and Critique 26 (2015)).
And finally, the white men systems have lost the relationship of respect, reciprocity, and sacredness with and of Nature. The capitalist and colonial system cannot guarantee the rights of Nature by this lack of ethics that is the result of ignoring the laws and relations of the natural world.
II. Five Reasons why Indigenous Peoples are essential for the Rights of Nature
The view that Nature as a person, or rather that environmental entities are seen and respected as in their own legal subjectivity, as entities of law is a proposal derived from various Indigenous Peoples. From New Zealand to Ecuador, Indigenous views offer a radical transformation to the Western legal system, with great and positive impacts on the planet. Although many States already recognize these ideas by incorporating them into their legal systems, they have still failed because they keep excluding the main interpreters, guardians and protectors of Nature: Indigenous Peoples.
Indigenous peoples do not see Nature as a source of services or economic value, but as a living entity in relation to them, capable of being legally represented. According to this view, our purpose as humans in the environment is to develop a spiritual and deep relationship of respect and reciprocity, not based on extractivism or expropriation, but in exchange and caring.
In their subjectivity, Nature entities, such as other species and phenomena (rivers, lakes, fish, winds, forests, mountains, etc.), must have the rights, protections, privileges, responsibilities and legal liability. Because they cannot represent themselves, the ancient, ethical and successful relationship of the Indigenous Peoples constitute the native people as the best guardians who can act in defense, representation and protection of her.
For example, as guardians, while occupying only a quarter of the world's surface area, we are responsible for safeguarding 80% of the world's remaining biodiversity. Over 20% of the world's tropical forest carbon is stored in Indigenous People's territories in the Amazon Basin, Mesoamerica, the DRC, and Indonesia. The Indigenous Peoples’s role is essential to protect Nature.
Another aspect, highlighted by Mallory Jang (Wet'suwet'en First Nation), is that this relationship of Indigenous Peoples with Nature is egalitarian: "Rather than believing humans are superior to Nature, many Indigenous nations believe that humans are part of Nature, the two are equal and interdependent. Nature has always had rights in many Indigenous nations, with Indigenous people having responsibilities and duties toward Nature to ensure their mutual survival. Nature is an essential part of many Indigenous communities and their laws.
In response to and against the anthropocentric, consumerist and rapist culture, Indigenous Peoples place Mother Earth at the center of the cultural system, justice system and social life. There can be no cultural integrity or justice without ecological integrity, i.e. the integrity and safety of the environment precede the integrity and safety of any kind (!).
Expressions such as Sumak kawsay (good living) or suma qamaña (living well), ñandereko (living harmoniously), and teko kavi (good life), Ama qhilla, Ama llulla, Ama suwa (not being lazy, a liar, or a thief), Suma qamaña (living well), ñandereko (harmoniously), Teko kavi (good life), Ivi maraei (land without evil), Qhapaj ñan (noble path or life) testify to this centrality of Nature when it made history in Ecuador in 2007 and Bolivia in 2009, when these two countries embraced the Rights of Nature as central to the country's legal and social system. Indigenous languages and art expressions translate their connections with Nature, therefore they are able to not only discover better way to care, but many communities make it a lifestyle, an understanding of the world, ruling their lives, economics and traditions based on that relationship. It was made clear by the Indigenous-Nature language used to establish those laws. After that, we can see countries like India and Bangladesh where courts have granted rights to the Ganges River and other ecosystems. In Uganda, and some cities in the USA, Brazil, New Zealand and Colombia, certain rivers and landscapes also have property rights. Something is happening.
This legal revolution proposed by Indigenous Peoples questions and transforms the deepest and most dangerous concept of the Western system which is the supreme capitalist concept of property. The reason for inequality and destruction of Nature is that she is underjudged by individual and petty owners, surpassing their environmental laws. That is why the laws and culture of the colonial white man fail to combat global warming, resource depletion, forest fires, global pollution, and species extinction, and climate change.
Indigenous Peoples not only place the rights of Nature and men on an equal footing, especially with regard to property but go further (Tilo Wesche discusses this from an epistemological point of view). They affirm that we belong to Mother Nature, we belong to rivers, mountains, valleys, stones, lakes, and forests. This turnaround is so profound that it extends, expands and transvestites the idea of property to other species.
Therefore, Indigenous Peoples with their ethics of reverence, reciprocity and responsibility are essential to guarantee the rights of Nature. In this sense, they are not caretakers, but caregivers of Nature. Humans and non-humans enjoy a non-hierarchical system of life and rights to live.
Living that way, Indigenous Peoples do not have a utilitarian relationship with Nature, her value is intrinsic, non-functional or services, postulando an equality of justice to all species, protect the guarantee with their own lives the safety of the environment, have and teach a non-anthropocentric culture, transfer and expand the concept of property. It is not about words and concepts, but actions and lifestyle. For them, Nature is important and needs protection because Nature owns them, protects them. For example, the Western society considere a piece of land valuable because it might have valuable minerals, such as gold, iron, nickel, or they can develop on it huge agricultural areas to make business and profit – even if it destroys the environment and ecologically inappropriate. For Indigenous Peoples, those minerals should be kept underneath the earth, and the agricultural areas, smaller and ecologically managed, should existe for local communities only.
Shortly, any human activity on the environment must follow the traditional and ecological knowledge that preserved that environment for generations.
*A shorter version of this text will be published by Cultural Survival Quarterly Magazine in September 2022. https://www.culturalsurvival.
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