I went to a talk in Leeds a week or so ago given by Cormac Cullinan, a South African lawyer, who I first came across in an article in the Guardian last year. The article speculated on whether 'wild laws' protecting all the Earth's community - including animals, plants, rivers and ecosystems – could be the saviour of our natural world (1). It briefly mentioned a minor but hugely significant event that happened in a small township in America. In September 2006, the Tamaqua Borough Council in Schuylkill County, Pennsylvania, unanimously passed a Sewage Sludge Ordinance that denied the right of corporations to spread sewage sludge as fertilizer on farmland, even when the farmer was willing. It also declared that sludge and dredge corporations possessed no constitutional “rights” within the Borough. In doing this, Tamaqua became the fifth local government in America to abolish the “rights” under law claimed by corporations, and often used in a bullying way to invalidate local laws like this one.
The key to the law though was that it recognized natural communities and ecosystems as legal persons with legal rights that are enforceable against corporations, and declared that corporations doing business in Tamaqua would in future be required to respect the rights of people and natural communities within the Borough. The ordinance also established that Tamaqua residents could bring lawsuits to vindicate not only their own civil rights, but also the newly-mandated rights of Nature. Anticipating a backlash against the ordinance, the Borough Council committed itself to holding Borough-wide public meetings to discuss even greater local control and self-governance (2).
Many have seen the Tamaqua law to be one of the first to realise the objectives of Cormac’s book, Wild Law: A Manifesto for Earth Justice (3). His thesis is that wild nature lacks the rights under the law that are only given to humans and corporations. Cormac used the analogy of property rights and slavery in his talk. You could not murder a slave, only deny its owner of their property. His South African heritage also allowed for a considerable emotional impact when he said that this transgression in not recognising the rights of other species has led to the breaking down of our relationship with nature such that we now need "reconciliation with a wider system of order, admit our faults and fit in again to mutual benefit with the rest of the biosphere". We must "restore the quality of our relationship" so that we can realise "a fuller expression of human values and civilisation".
Cormac was resounding in his assessment that the relationship had broken down because of the myth of our superiority, the imbalance between human exploitation and natural resources (an output driven culture), our separation and alienation from natural processes, our belief in technological salvation, and a contemporary lack of a sacred dimension to the world because that quality eludes easy measurement.
He was particularly dismissive of legislation that worked by degrees or had some spurious intent to work within environmental limits. Thus a certain level of polluting emission or exploitative resource extraction would be allowed in law, but why should there be a presumption for emission or extraction at all, especially in important areas for wild nature? Again, using the analogy of slavedom, a limit on flogging your slave of five times a day, and not six times a day, doesn’t give any rights to the slave. His argument would be that legislation has to move away from specifications, limits and tolerances, as they allow us a dualism of approach in that we feel comfortable with our actions while we continue to degrade natural systems. This dualism has been given a new lease on life in the UK by the adoption by Defra of an entirely resourcist "Ecosystems Approach" (4 i & ii). (For a technical report on "environmental thresholds", and how "environmental limits" may be used in the protection of natural resources for the use of people - see (5)).
Cormac’s book has been an inspiration, and his views take their place alongside the wider context of the Earth Jurisprudence initiative that emerged when Thomas Berry called for “radical change in our worldview and our behaviour; to be reflected in the nature of our choices, and governed by an awareness of the consequences of all our actions for the rest of the Earth Community.” (6). In addition, three conferences/workshops in successive years on Wild Law have been held by the UK Environmental Law Association (UKELA), and there is an Wild Law Forum online for people to share their thoughts and find workshop reports from the conferences (7).
Some of the early responses to Wild Law within UKELA were equivocal, but it would not be surprising if I were to tell you that this came from university law professors who seem singly unable to make the leap towards considering the land community as a whole, and how our behaviour as a species is a key element (8). Cormac cites the wisdom of some indigenous peoples and cultures as exemplifying approaches to the land community, and this creates difficulties for contemporary thinkers who cannot conceptualise how radical is the need for a change in our relationship with the natural world. Their cultural conditioning prevents them from grasping any other reality. Moreover, a “business as usual” ethos is less threatening to current comforts and sureties, especially when coupled with the dubious concept of an “ecological modernisation”, founded on the possibility of environmental improvement and enhancement through technological development.
I was fascinated by the idea of Wild Law as soon as I came across it. I wanted to ask Cormac what laws he would enact, given that the legislation we have today in the UK for protection of other species is absolutely compromised by our priority to safeguard our exploitation of natural resources by farming, shooting and fishing, and is more often than not flouted anyway -witness the persistent persecution of avian predator species on shooting estates (They shoot foxes, don't they? January 2007). Thus the legislation in Great Britain for the protection of wild animals, birds and plants is primarily the Wildlife and Countryside Act (WLCA), 1981 (as amended by the Countryside and Rights of Way Act, 2000) although some wild animals are also covered by their own legislation such as the Deer Act 1991 and The Protection of Badgers Act 1992 (9,10) and there is European legislation that covers some species as well (11).
It’s a bewilderingly complex situation. For wild animals, the WLCA makes it an offence to intentionally kill, injure, take, possess, or trade in about 40 wild animals listed in the Act (which includes protected invertebrates and reptiles), and prohibits interference with places used for their shelter or protection, or intentionally disturb animals occupying such places. The Act also prohibits certain methods of killing, injuring, or taking of the wild animals. (Why not all methods? But see later.) Similar considerations also apply to the nearly 90 wild birds listed. And for wild plants, the Act makes it an offence to pick, uproot, or trade in the nearly 50 wild plants scheduled in the Act. Perhaps we need to walk around with these lists in our pockets, because everything else is pretty much up for grabs – such as the red fox who has no legal protection (banning hunting is about regulating human behaviour, not protecting foxes). Foxes really should be given the right to sue Natural England for providing a Species Information Note that goes into great detail about how to eradicate them (12).
Even then the protected species are not safe as the legislation is so compromised by unregulated exceptions. I’ve already written about the “fishermans defence” that allows for the culling of grey seals out of season (Shooting grey seals out of season, September 2006) There is also a "farmers defence" whereby authorised persons may shoot deer if they are causing damage in the closed season (Section 7 of the Deer Act 1991 - see (13)). I recently came across the "gamekeepers exception" which gets around the protection given to badger setts by allowing the use of a single dog below ground to flush out wild mammals such as foxes in order to protect birds kept for shooting (in Schedule 1 to the Hunting Act 2004 - see (14)). Moreover, a licensing system exists under the various Acts that can circumvent most of the legislative protection anyway, as has been the case with the recent badger culls in a worthless attempt to show a reduction of tuberculosis in cattle, and in the cull of cormorants to protect inland, artificial, fishing lakes.
Thus while I would have expected a lawyer to bring forward a raft of legislation to counter the human disconnect, Cormac instead focussed primarily on the need for a bottom-up approach that works on modifying human behaviour - and therefore also our attitude - and the one example he gave that has contemporary resonance in the UK is the Transition Towns Initiative (15). In talking to Cormac afterwards, the 15 years in which he sometimes worked to frame key legislation, only for it to be gutted because of expediency, had shown him that our dysfunctional relationship with wild nature should have all approaches applied to it, and not just what may be ineffective laws. In one sense, he was asking for a rewilding of people, as much as for the rewilding of landscapes that should follow.
So far, so abstract, if only that we must explore what the rewilding of people is all about. If our transgression is to be too much of an influence on all other species and landscapes, then rewilding people must be about our recognition of the need to restrain that influence and remove it to varying degree. The quality of the relationship then becomes measurable by the range and quality of wildness that ensues around us.
I have written before of the relationship between wildness and naturalness. The quality of experience for these two attributes can be intensely personal and may be dismissed by some as a human conception – anthropocentric - rather than as empirical (Four strands of barbed wire – a Blacka Moor update, March 2007 and Wildness in the literary landscape, July 2007). But at some point, there has to be an accounting - or at least a move away from the emotive and virtual, and on to the practical. I have done this for myself, by attempting to frame a new approach to humans-in-nature, utilising various contemporary proposals that included Forest Habitat Networks and Forest Communities (Mountains Lions and Eagles – the place of humans in nature, February 2006), and by considering what qualities I value in a wildland experience, and how this relates to the landscapes around me, and to the rewilding initiatives started so far in Britain (Wildness in the literary landscape, July 2007). Much of this reflection is strongly informed by my belief and training as a Permaculturist. It is expressed as a cultivated ecology that has an ethos of nature care combined with land use strategies in which there is a decreasing intensity of land use until we reach a zone where there is no extractive use or management, and where wild nature is the key determinant (Zonal analysis – placement and relative location). It is our sacred place as Permaculturists, as we learn from the self-regulating natural systems that wild nature employs. (To my delight and surprise, Cormac told me that his mother teaches Permaculture, and that she designed his garden for him.)
And as I explored this paradigm shift that human civilisation must embrace in reconciliation with wild nature, I came across an article by Glen Parton from 1995 that so very eloquently laid out the philosophical and physical landscape for a vision of Humans-in-the-Wilderness (16). Parton advocates the development of a human lifestyle in which people live in small villages sparsely scattered through a wilderness environment. He talks about our having a “radical openness with wild nature” that means that our everyday lives are determined/regulated by the cycling of the seasons, the passage of day and night, and by the migration of animals. This closely worked visualization argues that the "primitive or vernacular paradigm is the key to resolving the contradiction between human progress and spontaneous nature” rather than settling for a trade off between them. In a sentiment that Cormac could only agree with, Parton says “Do we have the vision and will to go all the way home and really end human separation, isolation, and alienation from nature?”
Mark Fisher, 3 October 2007
(1) On thin ice, Guardian 8 November 2006
(2) Tamaqua Law Is First In Nation to Recognize Rights of Nature, The Community Environmental Legal Defense Fund, Pennsylvania, September 2006
(3) Wild Law: A Manifesto for Earth Justice, Cormac Cullinan (2003) Green Books ISBN-13: 978-1903998359
(4) (i) Development of an ecosystem approach, Defra www.defra.gov.uk/wildlife-countryside/natres/develop.htm
(ii)The Millennium ecosystem assessment, Defra www.defra.gov.uk/wildlife-countryside/natres/millennium-eco.htm
(5) Defining and Identifying Environmental Limits for Sustainable Development, Defra 2006
(6) Earth Jurisprudence www.earthjurisprudence.org/index.html
(7) Wild Law Forum www.forumality.co.uk/environment/wildlaw/
(8) Wild Law – UK Environmental Law Association www.ukela.org/about_us_wild_law.shtml
(9) Wildlife management and licensing advice, DEFRA
(10) Wildlife and Countryside Act 1981 www.jncc.gov.uk/page-3614
(11) Conservation (Natural Habitats, &c.) Regulations 1994 (EC Directive 92/43/EEC)
(12) The red fox in rural areas, Natural England Species Information Note SIN004
(13) Deer, Wildlife Management and Licensing Advice, Defra www.defra.gov.uk/wildlife-countryside/vertebrates/deer.htm
(14) Problems with badgers in rural areas, Natural England Technical Information Note TIN005
(15) Transition Towns WIKI www.transitiontowns.org
(16) Humans-in-the-Wilderness, Glen Parton (1995) the Trumpeter (Journal of Ecosophy)