Cormac Cullinan – Wild Law and the long fight for environmental justice (Part Two)

CAPE TOWN, SOUTH AFRICA - NOVEMBER 12: Protestors during the Liesbeek Action Campaign against Amazon River Club Development on November 12, 2021 in Cape Town, South Africa. It is reported that indigenous and heritage protection and conservation groups with concerned residents have slammed the development by Amazon citing that it is a destruction of a sacred heritage site that deeply violates climate change policy, including the Paris Agreement. (Photo by Gallo Images/Brenton Geach)

By Don Pinnock

19 Aug 2024

Two armchairs by a fire, with rain pelting down outside, provided a cosy setting for a disconcerting conversation with a leading environmental lawyer about the state of the planet.

Read Part One here and Part Three here

Cormac Cullinan is a globally renowned environmental lawyer who, 21 years ago, wrote the ground-breaking book Wild Law. It was so prescient that today it’s more relevant than when it was published. Since then he has greyed a bit but otherwise seems remarkably ageless with a puckish sense of fun and boundless energy. His main client is Earth itself.

Don: What interests you about law and its impact on society?

Cormac: I suppose I’m a person who’s interested in law as a means of changing society. There are some lawyers who love the structure of the law. I can appreciate the beauty of that structure, but it’s not really what interests me about law. I think law is fundamental to society and a powerful tool for shaping it, for better or worse. Someone once said to me that the law is like the DNA of society, it plays a big part in how society replicates itself.

In the climate change world, people talk about “business as usual” scenarios, meaning if we continue on the current trajectory, society will replicate itself in the same form. But what’s completely clear is that our societies are ecologically unviable and irrational. We’ve constructed them as if we’re not part of Earth. And we are part of Earth. Law is an imagined reality. We construct it and we can reimagine it. We need to reattach human self-ordering to the rootstock of the rules of the universe and try to align human laws with the fundamental principles that govern the ecological system we are part of.

Don: What’s your view on the role of law in addressing climate change?

Cormac: To move from a ‘business as usual’ society to an ecologically viable one will require fundamental changes to law and governance. At the moment, environmental law is generally seen as a minor side-branch of law. But if the primary objective for humans is to figure out how we can coexist harmoniously within Nature, all law should have an ecocentric perspective.

Archive photo of the orignal defendants in defamation suits brought by an Australian mining company (from left to right): environmental lawyer Cormac Cullinan; Lutzville community activist Davine Cloete; social worker, author and commentator John GI Clarke; former Centre for Environmental Rights’ (CER) attorney Tracey Davies; Riaan Oberholzer; Wild Coast community activist Mzamo Dlamini; Tossie Beukes and former CER attorney Christine Reddell. (Photo: Supplied by GroundUp)

It’s a matter of framing. If you look at the history of law, at one time or another indigenous people, women, slaves, even children – all kinds of people – were outside the frame of legal subjects. We’ve enlarged the frame progressively to recognise that they are human beings with inherent rights.

We now need to enlarge that frame to include the natural world and to recognise that all that has come into being has the right to be and to make its contribution to the Earth community.

If you make the frame Earth itself – the whole community of life – you immediately see: ‘Okay, what we’re trying to do here is looking after our life by conserving all life.’

Don: What about the legal challenges related to climate change?

Cormac: Climate change isn’t the problem; it’s a symptom of the problem, as is the catastrophic collapse of populations of wild species. Solving climate change is fundamentally about changing how we see our role on the planet. It’s a cultural problem which arises from the belief in some cultures that the best way to increase human well-being is to take more from Earth.

Although the cumulative consequences of destabilising the climate are profoundly harmful to humans and most other beings, almost every activity that causes climate change is perfectly legal. It’s legal to open a new gas field or a new coal mine or build more highways provided you get the permits. For this reason, it’s difficult to stop these things.

Most climate change litigation aims at reducing emissions or getting governments to enforce stronger measures. But it’s difficult to show that a particular company’s emissions cause specific harm. It is difficult to hold them liable unless you can show a causal link. There has been progress on that, but the real focus is on addressing the broader issues.

Don: Could you expand on that?

Cormac: The Paris Agreement aims to keep global warming below 1.5oC because beyond that there will be huge damage to ecosystems and human societies. This will have a negative impact on human rights, so climate change litigation is increasingly human rights litigation.

Many climate change cases are now framed in this way, emphasising the impact on rights to food, life, water, and more, rather than focussing on whether a particular company emitted more greenhouse gases than permitted by environmental laws.

Don: In the face of large corporations with bottomless legal budgets, how important is climate change litigation?

Cormac: Litigation is important, it can put sand in the gears of harmful industries, slowing them down. There’s a rush to secure rights for new oil and gas fields because companies know the window is closing. Litigation stopped a huge company like Shell, backed by the government, from undertaking seismic blasting off the Wild Coast.

Don: Litigation depends on existing laws that mostly see the planet as a free resource. Can law be reimagined to better serve the environment?

Cormac: We need to reframe law to see the whole community of life, making conservation and living harmoniously with Nature the central purpose, instead of focussing on legitimising the exploitation of Earth. This shift requires a revolution in our legal and governance systems. Building a global movement, like the Global Alliance for the Rights of Nature, is essential for making these fundamental changes.

Education and awareness are also key, as younger generations need to grow up understanding the importance of living harmoniously within Nature.

To read the laws of nature, we need to develop a refined capacity to observe nature by deepening our relationship with place to become ecologically literate. (Photo: iStock)

Don: What do you mean by Rights of Nature?

Cormac: Rights of Nature is about recognising Nature as a subject, not an object. This legal perspective shifts the focus from human rights alone to the rights of all beings and ecosystems. This concept is rapidly gaining traction globally and is being applied in a growing number of countries, but it hasn’t penetrated much in South Africa.

I don’t believe that existing environmental laws will be enough to stop the ongoing degradation of Earth by people. We need to make fundamental changes to legal systems to reflect the reality that our role as humans is to live harmoniously within Nature and to respect the rights of all. So that is why for more than 20 years I’ve worked to build a global movement that can bring about transformative change.

I was part of the effort to draft the Universal Declaration of the Rights of Mother Earth, which was adopted in Bolivia in 2010. This document has helped establish the framework for rights of Nature. I was one of the founders of the Global Alliance for the Rights of Nature and became a judge of the International Rights of Nature Tribunal which the Alliance established.

Don: How does this intersect with your work in South Africa?

Cormac: In South Africa, although the government acknowledges the huge threats that climate change poses and has signed the Climate Change Bill, parts of government still promote oil and gas exploration and increased use of fossil fuels. This mindset reflects the outdated perspective that the more fossil fuels are available the more society benefits, a view that seems to be shared by some judges.

For example, in one of our cases at Cullinan and Associates, the High Court found that the environmental authorisation for a gas-fired power station at Richards Bay had been unlawfully granted. The public participation hadn’t been done properly. But the judge then allowed the project to proceed on condition that there was proper public participation in relation to the pipeline to connect the power station to the port.

Similarly, the Supreme Court of Appeal recently agreed with the Eastern Cape High Court that the granting of the right which permitted Impact and Shell to conduct seismic surveys off the Wild Coast was unlawful.

However, the court then offered Shell an opportunity to renew the right, provided that there was proper public participation. In both cases our clients have appealed.

However, I think this shows that many older people come from an era in which more oil and gas, more coal mines, was assumed to be socially beneficial and so continue to support the expansion of the fossil fuel industry, despite the chaos that this is unleashing.

Job creation is often cited as a reason to continue harmful activities, but it’s a false argument. Some jobs benefit society, others harm people and the environment and must be stopped. Yes, we must help people find a way to transition to environmentally friendly jobs, but this isn’t a reason to prejudice our children and future generations by postponing the transition to renewable energy. If we trash the planet everyone loses their jobs.

Don: How important are indigenous perspectives in your work?

Cormac: Indigenous societies are hugely important in that they offer valuable insights into living harmoniously with other beings, whether they be animals, rivers or mountains. They have stayed out of Western materialist monoculture of the mind and know how to live without degrading their habitat.

Protestors during the Liesbeek Action Campaign against Amazon River Club Development on November 12, 2021 in Cape Town, South Africa. (Photo by Gallo Images/Brenton Geach)

They understand that we live in an animate community of life, that consciousness is not confined to people and that to thrive in that community you must take responsibility for maintaining respectful relationships with other members of that community.

Don: How much traction are these perspectives getting?

Cormac: They’re accelerating globally and I believe this will have a profound impact on the world. Rights of Nature started gaining momentum after Ecuador adopted it in its constitution in 2008. Young people in Ecuador now see these rights as normal, which is a significant shift in perspective.

Most of my work in this field has been outside South Africa, but a few years ago I decided to do more work in Africa. We have now established the Wild Law Institute here in Cape Town which serves as the secretariat of the African hub of the Global Alliance for the Rights of Nature. It is also the secretariat of the Antarctic Rights initiative which campaigns for the recognition of Antarctica as a legal person like a state.

Antarctica plays a vital role in maintaining the global climate, driving oceanic currents and preventing massive increases in sea levels. It also has a unique legal status – it isn’t owned by any country. Establishing legal personhood for the ice continent would make it a pure voice for Nature in international affairs. It could have a voice in climate negotiations and be represented in courts around the world.

Don: What challenges do you face in promoting such community-of-life and rights of nature ideas?

Cormac: Since writing Wild Law, I’ve been focused on helping to build a global movement that can become strong enough to make change happen, because I realised that if you want to make transformative changes in societies across the world, you need a lot of people on your side.

Our main challenge is the deeply ingrained colonial mindset that sees Earth as a collection of objects or resources for people, governments and corporations to exploit. Changing this perspective requires shifting deeply held beliefs and world views.

There’s also resistance from powerful vested interests that benefit from the status quo. However, having first learnt to be an activist in the anti-apartheid struggle, I have great faith in the power of organised civil society to change societies.

In terms of where we are now, the Rights of Nature movement is accelerating globally. For years it felt like a small group of us pushing this big boulder up a hill, hoping that it wouldn’t roll back. Now I think we have crested the hill and the boulder is beginning to run away from us and we have to run fast to catch up with it. I hope it’s unstoppable!

I sometimes say to people: “We’re like a leaf on the tree of life. We say this leaf has human rights but deny the rest of the tree any rights. It’s quite obvious that the rights of the leaf are meaningless if the tree doesn’t have the right to exist.

Human life is sustained by Nature and the human right to life cannot be sustained without protecting the rights of Nature. The whole universe is a relationship. DM

Tomorrow, Part Three: Climate lawfare: Michelle Bender – fighting for the rights of Mother Ocean

https://www.youtube.com/watch?v=REeWvTRUpMk

Categories:

Tags:

DM is much better if you are signed in...

World