Michelle Maloney
Australian Earth Laws Alliance
13 December 2014 (Byron Bay)
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Our current legal system supports the destruction of
the natural world
Local communities in Australia
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Other approaches
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◦ Are not recognised in the Australian Constitution
◦ Have limited powers - local councils are created by State
Governments
◦ Have few legal rights to protect local ecosystems in the face
of State Govt/Fed Govt approved activities
◦ More than 150 communities in the USA are using a new
framework for community organising and they’re ‘pushing’
the current legal system to change
◦ It’s a mix of peaceful civil disobedience and local level law
reform
◦ And it could be used here
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Why is our legal system failing to protect
the ecosystems upon which we depend?
Why other communities are doing things
differently - particular focus: CELDF model
Can this model work in Australia generally
and New South Wales in particular?
Notes about strategies and approaches
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Our mission is to promote the understanding
and practical implementation of Earth
jurisprudence and ‘wild law’ in Australia
◦ “Jurisprudence” = a theory of law
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Network of lawyers, other professionals,
community members, students
1500 people across Australia are part of our
network
‘Core group’ – Board of Management,
National Convenor, Project and Admin team
We’re all volunteers 
AELA’s five core
themes of work
AELA’s five core
themes of work
Rights of nature
Community rights
Ecocide
Education,
Arts & culture;
Cross cultural
Science,
Ethics,
Indigenous
knowledge,
Ecospirituality
Alternative legal,
economic &
political models
Networks and
support for
community groups
Rights of Nature Tribunal
Wild Law Judgments Project
Sharing Law
Governance, law
community organising
Why is our legal system failing to protect the
ecosystems on which we depend?
Our current legal system is human centred –
AELA is part of a global movement aiming to shift our
legal systems to also recognise the rights of the wider
Earth community to exist, thrive and evolve
Human centred
Earth centred
Current western legal
system
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5.
Human laws are the
highest authority
Nature is a commodity
for human use –
property, other law
reflects this
Rights for humans,
corporations, ships but not natural world
Pro-growth ideology
Western legal systems
often reject cultural
diversity (eg frequent
exclusion of indigenous
knowledge and lore)
Earth Jurisprudence
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5.
‘Great Law’ - laws of the
natural world ‘higher’
than human laws
‘Earth Community’ community of
interconnected subjects
Rights of nature
Living within ecological
limits
Encourages diversity in
human governance –
cultural pluralism,
indigenous knowledge,
Earth democracy
Our legal system
creates a ‘regulatory
pyramid’, which
channels people’s
concerns about the
environment ‘down’
to a narrow, limited
range of legal ways
that we can provide
comments about
what’s happening to
our natural
ecosystems.
We have few legal
mechanisms that help
us STOP unwanted
developments that
harm nature.
A range of existing
legal powers and legal
rights push local
communities into a
small space of
allowable activism.
State and Federal laws
can override local
laws regarding the
environment; our
culture sees nature as
property, not as
having intrinsic rights;
and large
corporations have
significant power and
influence over the
legal processes that
favour development
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Australia ‘inherited’ English law
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Our legal system is very stable and brings many
benefits for human societies
◦ First through the creation of English colonies (1788-1901)
◦ Then, after Federation in 1901, the same legal system
formed the foundation of our State and Federal laws
◦ It evolved around a number of fundamental (and human
centred) principles. The natural world is seen primarily as
‘natural resources’ which can be commodified and owned
by people – eg private property rights, power of
Governments to allocate distribution of land etc…
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But our legal system does NOT recognise the intrinsic
value of nature, or rights of nature - nor does it allow
local communities to protect their natural
environment in the face of State & Federal approved
developments
The creation of
Australia’s
Colonies
After 1901
our ‘Colonies’
became States
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States ‘gave up’ some of their powers and they
were allocated to the new Federal Government
No mention of the environment
No mention of local government in Federal
constitution
Local government created by State government
Local councils have limited powers (and this
differs from state to state)
Local communities do not have ‘community rule’
State and Federal government ‘over-ride’ or ‘preempt’ local laws
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Why are people locking the gate?
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Why are people defending their forests?
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What about wildlife protection?
◦ They’re not legally allowed to say “no” to exploration or
extractive industries
◦ The crown owns everything under the surface of the
earth – has total control
◦ Local communities currently have no legal rights to stop
logging (all State government controlled)
◦ Forests have no rights to exist
◦ Animals and plants have no legal rights of their own
◦ We have very narrow laws that enable people to protect
our wildlife and ecosystems in certain circumstances;
often these laws are overridden by development
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Earth jurisprudence
Earth democracy
Global movements
Rights of nature and the ‘Earth democracy’
movement
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Social movements – challenging status quo
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Occupy, citizen movements challenging the G20 etc
Plethora of social justice groups, protests
Collaborative economy/sharing economy
Voluntary Simplicity, De-growth
Environmental movements
◦ Earth democracy & Earth jurisprudence
◦ Rights of nature
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Global Alliance for the Rights of Nature
Laws and movements around the world
India – ‘Law of the Seed’
CELDF – community and nature’s rights
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Rights of Nature provisions
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Also worth noting –
CELDF – Rights of Nature local laws, USA
Ecuador 2008 – Constitution
Bolivia 2010 – Act for Rights of Mother Earth
New Zealand – rights granted to nature under Treaty of
Waitangi processes – eg Whanganui River, Urewera Forest,
◦ India – Navdanya, ‘Law of the Seed’, river rights for Ganges
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◦ Legal recognition of non-human animals
◦ Eg India recognising rights of cetaceans; has banned them
in theme parks
◦ 2002 – Swiss Constitution recognises companion animals
as living beings with legal status, not just objects
◦ Not ‘earth centred’ as such, but does focus on rights for
non-human earthlings
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Overview:
◦ In the USA, local communities are saying “enough” to
unwanted developments. They are passing their own
local laws, banning unwanted activities, and asserting
community and nature’s rights
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The next few slides set out:
◦ The story of CELDF – the Community Environmental
Legal Defence Fund
◦ The communities they work with
◦ Today: 150 local level ordinances that assert community
and nature’s rights + movement to push for State level
law reform
◦ How do they create these new laws?
◦ The consequences of these local laws?
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Began working within the
existing US legal system
Won large number of
cases, very successful
But felt they weren’t
saving anyone or
anything
“The only thing
environmental law
regulates is
environmentalists”
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They realised ‘the regulatory pyramid’ forces
communities to waste time fighting fights they
couldn’t win in the long term
They’ve been watching the ‘box’ of allowable
community activism getting smaller
Corporate power means many corporations ‘drive’ the
laws that are put in place to benefit them
Met more and more communities who didn’t want to
adjust the small details of the environmental impact
assessment – they wanted to stop the developments
from occurring in the first place
Realised they needed a new model for changing
culture and law
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They assert self-government for local
communities
They assert the right of local communities to
decide what they will and won’t allow in their
communities
They assert the rights of nature ‘to exist,
thrive, evolve’
They strip corporations of their personhood
rights in their jurisdiction
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s.4(a) Right to water
s.4(b) Rights of Natural communities.
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s.4(c) Right to self-government
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Ecosystems and natural communities possess
the right to exist and flourish within the
Town. The residents of the Town of Wales
have the inalienable right to enforce and
defend those rights to protect all ecosystems,
including but not limited to, wetlands,
streams, rivers, aquifers and other water
systems, within the Town of Wales”
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150 + local ordinances
1 county ordinance –
Mora County, State of
New Mexico
Working to combine
local level groups to
form state networks
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There are several different ways local
communities can make local law in the USA
Ultimately however, all local communities in
the USA are similar to those in Australia,
because:
◦ State and Federal governments can override all local
laws, if the local laws go beyond their narrow
powers
◦ Corporations try to influence State and Federal
governments, to make law favouring the
corporations
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City of Pittsburgh, first bill of rights, stopped
plans to frack under cemeteries
◦ Corporations got state legislature to strip communities
of their only power ie where frack wells go
◦ Communities passed community rights ordinance,
corporations gave up plans
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Chapleigh and Newfield, two communities in
Maine, challenged Nestle Water Corporation
◦ Bill of rights – prohibit corporate water withdrawals.
Nestle had established test wells; communities passed
the laws; companies took test wells out and went away
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Communities have stopped ‘sewage sludge’
being dumped on agricultural land
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Social movement
◦ Not just single issue driven – communities can set a
framework for protecting their local community across
many issues
◦ New strategies for organising communities around broad
environmental and social issues
Changing the conversation about power
Changing the conversation about law
Directly confronting and challenging existing law via
democratically elected local officials making new laws
◦ then “pushing upwards” to change State laws
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Rights based discourse allows for all people to join a
movement – not just ‘experts’ (which is what
traditional regulatory reform actions have focussed
on)
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The CELDF strategy
embraces legal
conversations, by all
citizens
Accepts legal
challenges by State &
Federal governments +
corporations, as part of
the work
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“Historically, the most
terrible things, war,
genocide, and slavery
have resulted not from
disobedience but
obedience”
◦ Howard Zinn
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More than 150 communities have enacted
CELDF-drafted community rights laws
Only a handful are facing legal challenge to
overturn them
Several cases where state governments have sued
their own communities to overturn local laws
◦ State government acting at the request of industry
◦ Several communities withdrew local laws before court
issued a decision
◦ In other cases, the courts found that the communities
were pre-empted by the state or had violated the rights
of corporations to conduct their activities
◦ CELDF don’t anticipate favourable rulings from courts at
this stage
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Examples
Colorado Oil and Gas Association v City of
Lafayette, Colorado
◦ Lawsuit based on one claim – that the local law is preempted by the state government’s Oil and Gas
Conservation Act
◦ Thus the legal challenge is based on the idea that the
state holds exclusive power over oil and gas, and local
communities have no control over such extraction
◦ East Boulder Citizens United – grassroots group
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Vermillion et al v Mora County, New Mexico
◦ Two lawsuits have been filed to overturn the Mora
County Community Bill of Rights Ordinance
◦ Corporations claim the ordinance challenges due
process rights under the Constitution
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First time in US history that an ecosystem has filed to
defend itself in a legal case
Elected officials in Grant Township passed a local law in
June 2014 – asserting community and nature’s rights
PGE (Pennsylvania General Energy – an oil and gas co.) is
suing the Township, challenging its ban on fracking
The watershed is ‘joining’ the Township’s legal case to
defend its rights to exist, thrive and evolve
Case taken by township’s attorneys on behalf of nature
News article – 10 December 2014 http://www.publicherald.org/archives/19582/invisible_ha
nd/
Can the CELDF model work in Australia?
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How local laws are made today
Can we use the CELDF rights based model?
How would it work?
What are the risks?
What are the benefits?
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Created by State governments
Local councils in most State jurisdictions can
make laws within a narrow range of permitted
activities
Most state governments reserve the right to
over-ride local laws that ‘conflict’
Slightly different arrangement for NSW
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Functions and powers given to local councils
under the Local Government Act 1993 (“LGA”)
and other legislation:
◦ Service functions
◦ *Regulatory functions
◦ Revenue functions… etc
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Council charter/guiding principles:
◦ “to properly manage, develop, protect, restore, enhance
and conserve the environment of the area for which it is
responsible…”
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s. 23: Council may do all things as are
supplemental or incidental to, or consequential
on, the exercise of its functions
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Under the LGA councils can regulate activities in two
main ways:
◦ 1. By granting approvals for certain activities which cannot
be carried out without council’s approval (e.g. dispose of
waste into a sewer, operate a caravan park, any other
activity prescribed in regulation)
◦ 2. By issuing an order that a person do, or stop doing,
something in certain circumstances (e.g. to cease
conducting an activity where it is likely to constitute a
threat to public health or safety)
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Councils may adopt local policies specifying the criteria
the Council must take into account in determining
whether to give an approval or to give an order.
Where a local policy conflicts with the LGA or any other
state legislation, the policy is deemed “void”
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Councils in NSW do not have broad powers to
make local laws on a range of issues
◦ Councils in other states do have these broader
powers – eg Councils in WA, Qld
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In NSW – the activities for which Councils can
pass approvals or orders are very limited –
only what’s listed
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s.1.3(3) “In carrying out its functions a local government
is to use its best endeavours to meet the needs of
current and future generations through an integration
of environmental protection, social advancement and
economic prosperity”
s.3.3(3) “A liberal approach is to be taken to the
construction of the scope of the general function of a
local government”
s.3.17 Governor may amend or repeal local laws
s.4.99 – votes by the electorate on polls and
referendums
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Yes
Because despite the differences between US
and Australian law, there are important
similarities:
◦ Local community laws can be over-ruled by State
and Federal law
◦ Local communities can be challenged by
corporations
◦ This approach is, at its essence, a civil rights
movement – it advocates that democratically
elected local officials create community driven law
reform
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Several options
◦ A council could use existing powers/authorities
under the LGA, to establish community and
nature's rights and prohibit certain activities,
 Eg make an order under s.124 that’s broader than
such orders presently are and/or
◦ A local council could pass a resolution to create
new powers for community decision making
 Section 15/16 of the LGA refers to constitutional
referendum - essentially that the council can only
make certain changes to the electoral process with a
vote of the people. This could be broadly interpreted
…
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So what happens if we get a local council to pass
a CELDF style ordinance, asserting the
community’s rights and saying ‘no’ to certain
developments?
State will probably over-ride or NOT ALLOW the
local law
Depending on the industries involved, they may
lobby the state government too
Legal action? Arguable that the State Government
wouldn’t need to take legal action; just disallow
the local law
◦ Example – Fremantle Council’s attempt to pass a law
banning plastic bags. This law has been stopped from
entering into effect by the State Government
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Community organising to identify the healthy
future everyone wants
Local councils asserting local and nature’s rights
‘Changing the conversation’ about community
rights, environmental health and our legal system
in Australia
Community strategies include media advice, fact
sheets, blogs, articles in newspapers
◦ Raising awareness of current legal system; directly
challenging it
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Ultimately – pushing to transform our legal
system
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It’s important that we create a change in our
thinking
We need to stop asking Governments
‘permission’ to protect our precious environment
We need to assert the future we want
If we create local laws, and State governments try
to override them, the ‘discourse’ or
‘conversation’ would include these types of
arguments:
◦ “We went through a democratic process; we want to
protect our rights – the State government is denying us
our rights”
◦ “Our own State government is denying us the
opportunity to make community supported local laws”
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Why go through all this, if the State
Government can over-ride these local laws?
Few major ‘shifts’ in society have been
handed to us by governments
They have been fought for by citizens
When you don’t directly challenge the law,
you are validating it
One day, if enough of us push to change the
law – peacefully and with the principles of
Earth democracy supporting us – we will
change the legal system
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Women marched, chained
themselves to sites of
‘power’
Voted, were jailed and
trialled
And they won
in 1902 - Australia was the
first country in the world to
give women both the right to
vote in federal elections and
also the right to be elected to
parliament on a national
basis.
(New Zealand granted women
the right to vote in 1893, but
did not allow women to be
elected to office).
Where to from here?
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This approach to community law making is
new for Australia
For groups interested, we can try a range of
strategies
What AELA can offer re support
◦ Information workshops, strategy meetings
◦ Ongoing advice and support
◦ Part of global network, work with CELDF
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•Local champions – you’ll need a small organising or working group, to be
catalysts/organisers; liaise with AELA/CELDF.
•Identify allies in that jurisdiction (business, unions, wider community)
•Legal strategy – content of draft ordinance; possible processes and risks?
3
•Community engagement – How do you start these conversations? How do you get
more people involved? Who do you get involved? How many people do you want
involved? Present alternative economic strategies for your region?
4
•Political engagement – start conversations with local council representatives; lobby
for local laws. Conversations with State Government when the time is right?
•Communications strategy – factsheets, blogs, media releases, ‘telling the story’
5
•Highlighting injustices; highlight innovative approaches around the world
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Discuss within your primary group/working group
Develop your own local community strategy
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Draft local laws with AELA
Prepare materials relevant for your region, to tell people about these ideas and the
model law
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Understand your local council – it’s powers and local officials
How engage others in the community? Who to engage? NGOs, grass roots groups,
businesses with similar values etc
Example: a 2 page fact sheet that sets out why the natural ecosystems are important to the
community; the impacts of destructive practices; what the options are for stopping these
practices and how the community will be better off
A petition for local people to sign – to show their support for the relevant actions, and
passing a community law
Media campaign
Begin conversations with schools, businesses, indigenous people, church groups,
others – build your network of supporters
Begin conversations with local councillors
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Initial conversations (AELA can help)
Work with supportive councillors to develop specific strategies for proposing new law
making/resolutions/laws themselves
Prepare for the hard yards – months, years of conversations
Present councillors with letters of resignation if they won’t support their community
Organise candidates for the local elections
Promote the discourse – use the language, promote the ideas, use the media
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Michelle Maloney
[email protected]
www.earthlaws.org.au
Facebook and twitter link can be found on
our website
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Wild Law 2011