Settler Ecology and Natural Rights

Whanganui River. Courtesy of Wikimedia Commons.

 

      This blog entry follows on from my July 31, 2021 blog entry on Environmental Sustainability, Personhood, Legal Rights, and Indigenous Ecological Knowledges. Here I frame the matters under consideration in terms of settler ecology and add some new ideas and information. Elsewhere I’ve written that because natural rights doctrine (the human right to life and liberty) derives from nature, then self-evidently nature possesses these same rights. The counter argument is that human beings are exceptional in having consciousness, agency, language, etc. But this human exceptionalism is under challenge from neurobiologists, behavioral ecologists, and philosophers, not to mention animal rights activists and scientists who study plant intelligence and communication. Take, for instance, the 2012 Cambridge (University) Declaration on Consciousness, in which several prominent scientists declared that “Convergent evidence indicates that non-human animals have the neuroanatomical, neurochemical, and neurophysiological substrates of conscious states along with the capacity to exhibit intentional behaviors. Consequently, the weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness.”
    If, then, more than human living creatures have consciousness, agency, language (gestural as well as sonic), and so on, it would appear that Western ways of thinking must grant them at least a moral right to life and liberty. Do other living beings—not only human beings—similarly have a legal right? What are the advantages and disadvantages to positioning animals (and possibly plants, and indeed entire ecoystems) within the modern, Euro-American legal framework of rights and obligations (duties) that largely derive from the social contract and justice theories that began during the Enlightenment? What is the relationship between such a rights regime for the environment and settler ecology? What possibly more desirable alternatives are available?
    At least since Christopher Stone’s provocative book Should Trees Have Standing (originally published in 1972)--that is, legal standing--nature’s natural rights have been invoked in the US to protect environmental features such as endangered species, landforms, and ecosystems against encroachment from developers. That is an application of ecojustice, and it is represented by a dissenting strain, neither colonialist nor extractivist, within US settler ecological thought: one that runs through Henry David Thoreau and Aldo Leopold to contemporary conservation biologists and environmental activists. Town governments in Pennsylvania, for example, have passed ordinances granting legal rights to certain landforms in order to prevent fracking. They argued that if US law grants legal rights based on “personhood” to corporations, which corporate “persons” may have some kind of collective agency and intentionality, but lack consciousness, then landforms and ecosystems may also be considered persons and be granted similar rights. The latest example of such a lawsuit is occurring in Florida, where plaintiffs have gone to court on behalf of a threatened ecosystem, Lake Mary Jane, in an effort to stop work on a nearby housing development. Needless to say, the fracking corporations quickly sued the Pennsylvania town governments, and the judges in the state courts ruled in their favor. Whether the same fate awaits Lake Mary Jane remains to be seen.
    Rights regime suits have been effective in some instances outside the US, however. Ecuador and New Zealand are cases in point, where ecosystems such as the Whanganui River, and mountains have been granted the right to be respected and largely left alone. In those cases, the claims have been made not exclusively within a Euro-American legal framework of rights and personhood, but rather also by giving weight to Indigenous people’s beliefs concerning the rights and sentience of non-human natural beings, which requires thinking of them not as objects (as Western science does) but as subjects—that is, as living beings with their own forms of subjectivity, agency, consciousness, etc. In Ecuador, rights of nature are enshrined in its Constitution. That is not settler ecology. 

WIPO wipeout

 

Foodini, the puppet-magician, whose tricks always failed.

            Protecting the rights of indigenous cultural groups to their cultural heritage with intellectual property law is but one of the UN's World International Property Organization (WIPO)’s many aims. Its international anti-piracy efforts are meant chiefly to protect individuals and corporations, not indigenous cultures. After all, national copyright law was initiated originally to protect authors and publishers from copying and mass marketing without permission. Authors and publishers must grant permission, and they commonly do so in exchange for appropriate payment. Patents are meant to protect inventors and trade-mark protection was added to the mix.

            Looking at WIPO's self-descriptions, it is plain that beyond the human rights rhetoric, they regard cultural heritage as property assets needing protection; further, that their intellectual property law-in-the-making is meant to encourage “sustainable development” (an oxymoron; see my blog entry for Sept. 2, 2010, "Why Sustainable Development Must Be Abandoned"). They divide cultural heritage into three components: traditional knowledge, genetic resources, and traditional cultural expressions (or folklore). On their website they state that these are “economic and cultural assets of indigenous and local communities and their countries” and that “WIPO [is undertaking] negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection” of these three components of cultural heritage ( http://www.wipo.int/tk/en/igc/index.html).

            WIPO’s cultural asset-think continues in its document entitled WIPO Overview 2011 (WIPO Publication No. 1007E/11). Primarily, they envision an economic marketplace with commodity exchanges of intellectual property: “The intellectual property system provides a way for these intangible assets to be owned, disseminated and traded, thus enabling creators or owners of intellectual property rights to reap some benefit from their own work or from their investment in a creation.” This protection is justified not only by asserting proprietary rights, but also by proposing that copyright stimulates creativity and invention. The possibility of making a profit encourages (the jargon word here is incentivizes) people to come up with more ideas, some of which will be good ideas that will not only enrich the creator but also ensure the progress of humankind. Note the rhetoric: “In this way, the intellectual property system serves its fundamental purposes of stimulating innovation and creativity and of contributing to market order.” Market order? Yes, protection from such things as piracy. “Innovation and creativity,” WIPO goes on to assert, “increasingly play a role in the development of solutions to such emerging challenges as climate change, food security, and public health.” No doubt, but one wonders what proportion of copyrights and patents are going to alternative energy compared with those going to the fossil fuel companies, what proportion are going to organic and local agriculture compared with Monsanto and agribusiness, and so on. “By providing a stable environment for marketing products protected by intellectual property [law, WIPO] also oils the wheels of international trade” (What Is Intellectual Property, WIPO Publication No. 450[E]. p. 22).

            Returning to WIPO’s discussion of cultural heritage, the Overview 2011 document repeats the statement about developing international legal instruments. But it also states that “Indigenous and local communities seek appropriate and practical ways of preserving, promoting and protecting their cultural and intellectual heritage as a means of sustaining their cultural integrity and promoting their own sustainable economic development consistent with their collective values.” Here, WIPO not only acknowledges its orientation to the commodity marketplace, but also couples cultural heritage to sustainable economic development, with the caveat that this be consistent with the indigenous peoples’ collective values. What if those values are not oriented toward economic development? Wouldn’t international protection of cultural heritage as intellectual property under copyright law tip the playing field in favor of economic development? The indigenous culture that refuses to protect heritage by copyright risks exploitation in the international marketplace. If their cultural values are not commodity-oriented, if traditionally they view heritage (including music) as a bundle of relationships, copyrighting culture would pressure them to think of culture as an economic asset instead. 

              From the point of view of WIPO, the International Monetary Fund, and others whose goal is to lift indigenous cultures out of material poverty through sustainable economic development, this change in indigenous worldview would be a positive good. But for those who think that “bundle of relationships” thinking is an important and potentially viable alternative to cultural asset-think, it would be a disaster. The way to prevent environmental catastrophe is not through encouraging technological innovation, commodity exchange and marketplace rewards, for that is what got us into the global environmental crisis in the first place, not to mention the economic crash of 2008 and growing income inequality throughout the world. Only when we stop objectifying, only when we stop putting an economic value on everything (for even so-called cultural value turns out to have a market price, David Throsby notwithstanding), only when we begin to realize that living beings take precedence, that we exist in a “bundle of relationships,” with one another, and with the planet, only then will we begin to understand how we may change course to reduce poverty (material and experiential) and injustice, and avoid environmental catastrophe.

            The bundle of relationships argument asserts the primacy of the gift over the commodity exchange, something I’ve been writing about for a number of years here and elsewhere. When I was a youngster, my schoolteacher said that Peter Minuit, representing the Dutch colonists in New York, supposedly bought the island of Manhattan, from the Indians who were said to own it, in exchange for wampum worth $24. Our class of students was told that the Dutch got the better of the bargain: the “savages” were stupid to have sold Manhattan for a ridiculously low price. Later I came to realize it wasn’t stupidity. They did not have the same concept of property rights and ownership as the Dutch settlers who paid them. They thought they were giving the Dutch the right to use the land, not to own it. Owning it was a concept foreign to them. The European colonists were more powerful and able to force their concepts of property ownership on the Indians. If the indigenous Americans had been more powerful, the European ideas would not have prevailed. Nor would they have prevailed if international law prohibited this kind of exploitation. In the same way, if indigenous cultures conceive of traditional music as a bundle of relationships, that leaves them open to economic exploitation from outsiders. 

              The solution to this problem, WIPO would argue, is not cultural relativism, but international law which protects their music as intellectual property, whether they have the concepts of property and ownership or not. Nonetheless, the idea that a bundle of relationships, with their ensuing obligations takes precedence over any economic value is a useful insight for cultural policymakers like me who are interested in promoting the kinds of amateur musical communities, such as the old-time string band revival which I have written about earlier, as a model for the circulation of music in general. The answers are not to be sought in propertizing and marketing culture, but in relationships, rights, and reciprocal duties.

Animal Rights and the Sound Commons

Animal Rights Demonstration

     I have argued in favor of a sound commons for all living beings, not just humans. All species, I claim, ought to be able to exist and communicate in their acoustic niches. On what basis might I make such a claim? Is it necessary in this case to claim that animals have rights? And if so, of what kind?
    I have observed three main lines of argument in favor of animal rights. One, which is many centuries old and is generally accepted in the West, is the argument that because animals have feelings and can suffer pain, they must not be treated cruelly. Indeed, in Europe and North America laws against animal cruelty have been enforced since the 17th century. The second line of argument makes a more radical claim, that animals (at least, the higher ones) are like human beings in that they can think, learn, feel joy as well as pain, and act altruistically as well as selfishly. Therefore, the argument runs, like humans, they possess natural rights to be able to live their lives to the fullest extent possible. This more radical argument gained momentum in the past forty years or so, as the environmental movement has embraced “wildness,” and animal rights groups have formed to advocate on their behalf. A third argument claims that animals should be granted rights because the consequences of doing so are beneficial to all living creatures, including human beings.

Animal cooperation

     Of course, many people oppose extending rights to animals. Some of these arguments are familiar: animals are dangerous to human beings; humans need to use animals for food and medical experiments, and thus our need for animals trumps any rights they may have; or domestic animals are property and property cannot possess rights. Some philosophers argue that animals cannot possess natural rights because they lack moral agency. “Rights and liberty are political concepts applicable to human beings because human beings are moral agents [who act in a] sphere of moral jurisdiction where their authority to act is respected and protected so it is they, not intruders, who govern themselves and either succeed or fail in their moral tasks. . . No animal rights theorist proposes that animals be tried for crimes and blamed for moral wrongs.” (Tibor R. Machan, “Do Animals Have Rights?” Public Affairs Quarterly, Vol. 5, no. 2, April 1991, pp. 163-4). Yet, humans sometimes punish domestic animals when they misbehave, as if they did know right from wrong. And some scientists have questioned the assumption that animals lack moral agency, citing instances of animal altruism and cooperation as evidence that animals can understand the difference between right and wrong, and therefore they are moral beings and have natural rights.
    Another argument against natural rights for animals is made on the grounds that rights carry duties or obligations. A tenant in an apartment has certain legal rights. One of these is the right to reasonable privacy; the landlord must not invade that privacy without due notice and cause. A tenant also has certain duties to the landlord, such as treating the apartment with care and keeping it in good condition. However, the tenant has the right to working heat, plumbing, and so forth, while the landlord has the duty to provide it. Rights and duties are reciprocal in this way. Others have a duty not to interfere unreasonably with my right to liberty, and I have a similar duty not to interfere with theirs. Rights cannot function without reciprocal duties, but the reciprocity also involves an ethical dimension presumed to be absent in non-humans.
    Indeed, even some of Locke’s near-contemporaries thought that the natural rights argument was weak, and that other arguments, based not on unprovable assumptions about inherent rights but, rather, based on favorable (and testable) consequences if rights were granted, made a stronger case. These instrumental arguments included utilitarianism, pragmatism, and so forth. The cultural equity argument, for example, turns not only on the idea of natural (cultural) rights but also instrumentality in those instances when it is argued that cultural diversity represents a kind of bank of various distinct knowledges and practices, all of which contribute (and may in the future contribute) to humankind. The usual example is cultural knowledge of medicinal plants; however, there are many other cultural adaptations. The argument for cultural diversity is similar in this sense to the biodiversity argument against species extinction and is partly derived from it.
    It does not seem to me to be necessary to grant full natural rights to animals in order to make a case for a sound commons for all living beings. One does not need to consider moral agency, or rights and duties. It is sufficient to grant animals a right to life. Although the argument in favor of biodiversity is an instrumentalist argument, while the animal rights argument is based on premise and deduction, both agree that animals must live; and if they must live, then they must do the things that enable them to live: eat, reproduce, and so forth. And one of the things animals must do in order to keep themselves alive is communicate with one another—with potential and actual mates; with members of their own species; and with predators.
     Animals communicate in several ways, but the most frequent are through sight, smell, and sound. Everyone has observed dogs marking territory with their scents, or cats puffing up their fur and making themselves look bigger to a potential enemy. And everyone has heard birds singing and other animals communicating through sound. But noise pollution does not affect humans only, as our example with the helicopters, caribou, and Innu people showed. Increasingly we are learning that noise interferes with animal communication generally, and diminishes animal capacity for survival. Animal communication through sound (zoosemiotics) is an interdisciplinary science that has come into its own in the last helf-century. We now know far more about animal communication than we did in the past. I will be exploring some of this knowledge concerning zoosemiotics and its implications for music, sound, and sustainability in future blog entries.