IT’S TIME TO CHANGE THE LEGAL NARRATIVE WHEN IT COMES TO ENVIRONMENTAL PROTECTION

by Yali Banton Heath

On December 4th Trump signed proclamations to shrink two U.S. national monuments in Utah. Bears Ears National Monument is to be squeezed from 1.5m to 228,784 acres, and Grand Staircase-Escalante National Monument from 2m to 1,006,341 acres. Unremarkably, this decision has sparked a backlash from various groups. It is a textbook debate on who possesses the rights to the land, and is one of many such disputes in which the environment itself is all too often overlooked.

National monuments in the U.S. are granted their status by the President under the 1906 Antiquities Act, drafted to protect sites of natural, cultural or scientific interest. In his statement, Trump argued that previous administrations have used this law to “lock up hundreds of millions of acres of land and water under strict government control” and that “public lands will once again be for public use”.

The tactics in his choice of words is glaringly obvious. He emphasises the word ‘public’, as well as promoting the illusion that the land will now be in the hands of the ‘American people’, as opposed to under ‘strict government control’. The land is actually most likely being freed up in response to interests from fossil fuel companies, as well as large-scale cattle ranchers.

The land is actually most likely being freed up in response to interests from fossil fuel companies, as well as large-scale cattle ranchers

The wording of the main public backlash campaigns is none the better. Upon opening the webpage of outdoor clothing company Patagonia’s website, you are met with the tagline “The President Stole Your Land” written across the screen. Kudos to them for voicing concern, but their use of the possessive pronoun “your” and the verb “stole” to describe the injustice, in my eyes, is regressive.

The point I’m getting at, is that the narrative of the debate on both sides – just like most land rights debates – is grounded in ‘who’ has the rights to the land, strung with connotations of ‘theft’ and ‘rightful ownership’. While in many cases this type of narrative is necessary, it remains to reinforce the status-quo that the environment is merely a commodity; something that can be owned, stolen or over-exploited according to human interest. When it comes to deciding the fate of sites of natural and cultural significance, this type of narrative is fundamentally counterproductive.

(Bears Ears National Park. Photo: Bob Wick, BLM / Flickr)

Patagonia’s CEO Yvon Chouinard wants to sue Trump and his administration, but how the company approach a lawsuit could go one of two ways. One option would be to sue him on the grounds that they will lose business from this decision; a notion that has been criticized by San Juan County Commissioner Phil Lyman in an interview on CNN. Lyman commented that Chouinard’s interest in the campaign is solely to allow him to continue an exploitation of the outdoors for what he calls “industrialised tourism”. Or, they could sue him on behalf of their customers, who may be deprived of recreational space. Neither course of action has the environment’s own interests at its core.

it remains to reinforce the status-quo that the environment is merely a commodity; something that can be owned, stolen or over-exploited according to human interest

Lawsuits have also been filed by wildlife and conservation trusts, as well as several American Indian tribes.

Already, there is a long list of stakeholders involved in this debate: the government, the American public, indigenous people, fossil fuel companies, conservationists, cattle-grazers, hikers and sports people, the list goes on… But where exactly does the environment itself come into the picture?

The concept of people holding ultimate rights over land is something that is being challenged worldwide. Rights of Nature (RoN) is a global movement which advocates for the recognition the natural world having its own inalienable rights, and for specific landscapes, rivers, ecosystems etc. to become legal entities. Thus, legal basis is provided for conservation and protection of the environment from human interests, regardless of what these interests may be.

 

(Laura Seitz, Deseret News. Kristin Rushforth, of Salt Lake City, protests at the Utah Capitol before the arrival of President Donald Trump on Monday, Dec. 4, 2017.)

Not only have we seen progress in New Zealand with the recognition of the Whanganui River as a legal entity, as well as the rivers Ganges and Yamuna in India, but closer to home in the U.S., movements are also making ground. A lawsuit was filed in September for Colorado River vs. State of Colorado, fighting for the river to have the “right to exist, flourish, evolve, regenerate, and restore”. In 2013, the city of Santa Monica also adopted a ‘Sustainability Rights Ordinance’ which states:“Natural communities and ecosystems possess fundamental and inalienable rights to exist and flourish in the City of Santa Monica.”

Although these examples are limited to rivers and urban spaces, a RoN approach should also be taken in protecting National Monuments and Parks.

Indigenous community participation is something that is integral to the Rights of Nature approach, and is of particular relevance in the case of the Bears Ears Monument. The five tribes who have filed a lawsuit for this case, are the Hopi, Navajo Nation, Ute Mountain Ute, Pueblo of Zini, and Ute Indian tribes – together they have formed the Bears Ears Coalition in attempt to protect the monument.

This is a far more caring and non-dominant terminology, and implies a sense of stewardship rather than actual ownership

In their proposal they discuss using the land for cultural practice and gathering medicinal plants. Their language, contrasting to the rest of the debate, lends itself to a RoN approach. They describe how they ‘visit’ and ‘hold’ the land, that they have a ‘relationship’ with their surroundings, and that the natural world is ‘interconnected’ as a whole. This is a far more caring and non-dominant terminology, and implies a sense of stewardship rather than actual ownership of the natural world.

If U.S. national monuments and parks were to adopt such an approach, it would serve the interests of conservationists, indigenous communities, and local people alike, without compromising the environment’s integrity and deepening an imbalance between society and the environment.

If possessive narratives of ‘yours’ and ‘our’ land persist in debates over land rights and environmental protection, there will always be room for land to be bought and sold. Solid legal underpinnings for the absolute and permanent protection of the natural world will forever remain a myth.

Featured image: Patagonia


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