Barefoot Lawyers, Communities, and the Earth: Legal Empowerment and the Struggle for Stewardship

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By Vivek Maru, CEO, Namati

The global human rights movement has made extraordinary progress, at least by the letter of the law. Many countries now enshrine basic rights in national legislation. But people continue to struggle to exercise those rights in practice. The UN estimated that four billion people worldwide live outside of the law's protection. For them, the law is an abstraction, or worse, a threat. They can be driven from their land, extorted by officials, and intimidated by violence.

This profound global rights gap is nowhere more urgent than in the realm of environmental and climate justice. Research demonstrates that secure community land rights are a necessary precursor to successfully addressing deforestation, food insecurity, and poverty. Time and again, we see that when communities have secure governance over their lands, they choose to conserve and wisely steward their resources – creating a bulwark against the destabilization of key resources like water, soil, and agricultural crops due to rising temperatures.

Yet nearly half of the world’s people do not have secure rights to govern their lands. Meanwhile, these same lands are vulnerable to increasing foreign investment interest and speculation by national elites. As demand for (cheap, unregulated) land increases while climate stability decreases, rural communities around the world face imminent threats to their homes, lives, and livelihoods.

These external destabilizing influences often set off a cascade of multiple and overlapping intra-community challenges. Often the divisive tactics of investors create community divisions, while infrastructure development degrades livelihoods. Elites may make back-room deals with local leaders, undermining community trust of those leaders.

It is only when local communities are empowered to claim their rights – both customary rights and those enshrined in national law – and fully participate in decision-making about their customary lands, that we find positive outcomes for sustainable resource stewardship and community resilience in the face of climate change.

To help achieve these outcomes worldwide, Namati champions an approach—grassroots legal advocates, sometimes known as barefoot lawyers or community paralegals—for placing the power of law in the hands of people. The advocates are trained in basic law and in skills like mediation, organizing, education, and advocacy. Paralegals help people to understand, use, and ultimately shape the law.

For example, in 2015, paralegals in Sierra Leone worked with ten communities in the north of the country to secure a more equitable lease agreement between the communities and a logging company. They successfully negotiated provisions for the protection of traditional or sacred grounds, profit sharing with communities, and protection from environmental harm.

In Myanmar, paralegals work with farmers who have suffered land-grabbing by the military under decades of dictatorship, offering practical advice on land laws to a much larger group of people than could be assisted by lawyers alone. Since 2013, Namati and several grassroots groups have helped nearly 10,000 farmers across seven states to protect their land rights under new Burmese law. Thousands of farmers have received land use certificates, and thousands of hectares of grabbed land have been returned to small-hold farmers.

Paralegal casework can also inform lasting policy change. In India, intensive paralegal efforts on several mining cases – resulting in valuable evidence about how the laws work in practice – gave advocates the information they needed to call for strengthened federal mining regulations. As a result, the Ministry of Environment, Forests and Climate Change included the paralegals’ proposed changes in an amendment to the relevant law.

Paralegals offer a practical, effective method for enabling communities to assume their rightful roles as primary stewards of their lands and resources. And paralegal experience in pursuing land and environmental justice can inform regional, national and even global advocacy on environmental protection. In the context of increasing resource scarcity and a shifting climate, respecting the rights of people closest to the land is essential to preserving our most precious shared resources. It is also what justice demands.

 To learn more about Namati’s impact click here.

Vivek Maru is the CEO of Namati. Namati and its partners deploy grassroots legal advocates to take on some of the greatest challenges of our times including protecting community lands, seeking environmental justice, securing citizenship rights and realizing the right to health. Just this year Vivek and Namati received the Skoll Award for Social Entrepreneurship. Watch his acceptance speech here. Previously, Vivek co-founded and co-directed the Sierra Leonean organization Timap for Justice, which has been recognized by the International Crisis Group, Transparency International, and President Jimmy Carter as a pioneering model for delivering justice services in the context of a weak state and a plural legal system. He also served as senior counsel in the Justice Reform Group of the World Bank. His work focused on rule of law reform and governance, primarily in West Africa and South Asia.

From Global Warming to Genocide Warning: Climate Change and Mass Atrocities

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by Dr. Simon Adams, Executive Director, Global Centre for the Responsibility to Protect

In the winter of 2006 Syria experienced the beginning of the most crippling drought in its recorded history. By 2009 key crops had declined by more than half, plunging almost a million people into food insecurity. In the northeast of the country farmers lost 85% of their livestock as wells dried up and farm animals died. About 10% of the population saw their livelihoods wiped out. During the three-year drought, more than 1.5 million Syrians fled from their farms, migrating to Aleppo, Damascus, Homs and other urban centers.

Rising temperatures and declining rainfall afflicted the entire Fertile Crescent, where agriculture was first born about 11,000 years ago, but fell particularly severely upon Syria. The ruling Assad family didn’t create the drought, but decades of dictatorship and dysfunctional policies around water management and unsustainable agriculture exacerbated its consequences. Facing poverty, hunger and water scarcity, resentments accumulated on the periphery of Syria’s cities and in the countryside. Then came the “Arab Spring.”

The confluence of these events has caused some to draw a causal link between them. In the words of US Secretary of State John Kerry, “It’s not a coincidence that immediately prior to the civil war in Syria, the country experienced its worst drought on record.” Environmental disaster intensified the “political unrest that was just beginning to roil and boil in the region,” adding stress on cities plagued by crumbling infrastructure, social inequality, overcrowding and corruption. In this scenario, climate change helped ignite the most bitter and bloody civil war of our times, providing a disturbing portent of our potential future.

Threat Multiplier

Kerry is not alone in identifying a disturbing credible connection between climate change and deadly conflict. Former UN Secretary-General Kofi Annan argued in his Millennium Report that climate change “may increase social and political tensions in unpredictable and potentially dangerous ways.” In 2014 the US Department of Defense described climate change as a “threat multiplier,” noting that a rise in global temperatures may “intensify the challenges of global instability, hunger, poverty, and conflict,” posing a particular threat to already fractured societies.

These challenges may also increase the possibility of mass atrocity crimes – genocide, war crimes, ethnic cleansing and crimes against humanity. Although the UN’s Framework of Analysis for Atrocity Crimes does not specifically address global warming, there are two risk factors that are directly relevant: motives or incentives, and triggering factors. Triggering factors could include environmental changes that drastically affect entire societies, including severe drought or natural disaster. Motives or incentives could potentially include a dramatic widening of inequality because of climate change, including food and water scarcity, environmental degradation, and the political manipulation of access to precious resources. But does the existing evidence support this grim prognosis?

In 2007 UN Secretary-General Ban Ki-moon linked climate change to the outbreak of deadly conflict in Darfur, arguing that a harsh drought had resulted in armed hostilities between settled farmers and nomadic herders. In 2012 deadly inter-communal clashes between Orma and Pokomo communities in Kenya’s Tana River Delta were perceived as being primarily driven by tribal animosities and political rivalries. However, the two ethnic communities were actually fighting over water access, scarce grazing land and tensions arising from land development.

Fighting between semi-nomadic herders and settled farmers has also occurred in Ethiopia, Central African Republic and elsewhere, sometimes escalating to the level of mass atrocity crimes. For example, in Nigeria rising temperatures and drought have caused Fulani herdsmen to migrate further south than ever before. In doing so, they have clashed with established agricultural communities. The fact that the Fulani herdsmen are mainly Muslim and the communities they are battling are predominately Christian has deepened animosities in a country that is already experiencing deadly conflict. While Boko Haram’s atrocities have attracted international headlines, there have been at least 6500 deaths resulting from violence between the Fulani and other communities in Nigeria since 2010.

Extended dry seasons, caused by climate change, could have a similar effect on ethnic conflict in South Sudan, where traditions of cattle raiding between competing communities of Neur, Murle and Dinka have increased in longevity and violent intensity over the last decade. Meanwhile in Yemen, growing water scarcity has had a direct impact on the conduct of the country’s civil war. Armed forces on both sides have deliberately targeted infrastructure in order to deprive rival civilian populations of access to water, effectively weaponising climate change.

Where governance is weak, the threat posed by climate change looms largest. There are predictions that accelerating climate change could potentially displace between 50 and 250 million people globally. It will also increase global hunger and the regularity of catastrophic environmental events. The resulting pressures may limit the capacity of some governments in the developing world to fulfill their basic functions.

We have already experienced this firsthand in relation to the 2014-2015 Ebola epidemic in West Africa. Understandably, the governments of Liberia, Guinea and Sierra Leone prioritized the health emergency over programs to consolidate the rule of law, dealing with past conflicts, and strengthening human rights institutions. Similar re-prioritization may occur in the face of expanded environmental crises with a long-term impact on political stability and economic development.

In 2010 the Robert S. Strauss Center for International Security and Law released a study of African governments’ institutional resilience to potential challenges presented by climate change. Of the 53 African states studied, the ten most fragile were (in descending order) Cote d’ Ivoire, Guinea-Bissau, Burundi, Zimbabwe, Comoros, Chad, Central African Republic, Sudan, Democratic Republic of the Congo and Somalia. Seven of those have already endured mass atrocities in their recent history, or are experiencing them now. This is the context in which climate change could reignite old conflicts or create conditions for new predatory politics.

2° Temperature Rise = Genocide?

Nevertheless, it is important not to conflate climate change, conflict and the risk of mass atrocities. At least one study has used historical data regarding temperature variation in Africa to argue that “a 1˚ C increase in temperature” leads to “a 4.5% increase in civil war.” But predictive modeling developed from such studies runs the risk of being wildly misleading. There is certainly no evidence that a one or two degree increase in global temperatures will automatically increase the likelihood of genocide in Africa or anywhere else.

I come from a “sunburnt country” and have personally experienced extended drought. But water scarcity in Western Australia has never resulted in civil war or a refugee exodus as it has in Syria. Similarly, no one is trying to bomb Southern California’s depleted water reservoirs like they are in Yemen. And herdsmen are not migrating south from Oregon to kill people and secure access to fertile grazing lands in Silicon Valley.

This should remind us that political history and economic development play an indispensable role in all of this. Indeed, even in areas most vulnerable to climate change and extreme conflict, the results are not universally negative. Water management in the Lake Chad Basin and the threat posed by Boko Haram has actually enhanced cross-border cooperation between Nigeria, Chad, Niger and Cameroon. Climate change undoubtedly threatens the future of our planet, but it might also enhance diplomatic collaboration.

Mass atrocities are the result of a convergence of vulnerabilities, of which climate change is just one. In the future ethnic warlords, authoritarian rulers and aspiring demagogues will undoubtedly use the consequences of climate change to mobilize support. But to quote Vesselin Popovski of United Nations University, “what will drive their fight is not the rain, the temperature, or the sea level.” The primary causes of conflict will remain raw politics and naked economics.

Precisely because climate change is a global problem, it provokes us to think beyond borders. From the Paris Agreement and the UN’s Sustainable Development Goals, to upholding our international responsibility to protect, the solution lies in severing the link between climate and survival for those people and places that are most susceptible to the ruinous effects of climate change. This should give us hope. Mass atrocity crimes are incited, organized and perpetrated by human beings. That means that like climate change, they can still be prevented by human beings.

Dr. Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect, has worked extensively with governments and civil society organizations in South Africa, East Timor, Rwanda, and elsewhere. Between 1994 and 2002 Dr. Adams worked with Sinn Féin and former IRA prisoners in support of the Northern Ireland peace process. He is also a former anti-apartheid activist and member of the African National Congress in South Africa.

Making History at Standing Rock: Tribes Are Leading Action to Preserve the Planet

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by Trip Van Noppen, President, Earthjustice

In North Dakota, thousands of people are now encamped on the banks of the Cannonball River to oppose the Dakota Access pipeline with the Standing Rock Sioux.  Routed through sacred sites, the $3.8 billion pipeline would transport Bakken oil under the Missouri River, where a break or leak would poison water for Standing Rock and potentially millions of people downstream.  Members of at least 280 tribes and First Nations have come from around the U.S. and Canada to peacefully demonstrate, making this the largest gathering of tribes in generations.  Delegations of indigenous peoples have come from as far away as New Zealand and the Ecuadoran Amazon, and more people arrive every day. “It’s powerful. It’s one of the most beautiful things that I’m fortunate to witness,” says David Archambault II, Chairman of the Standing Rock Sioux Tribe.   

It’s a historic moment and one that matters to the climate movement.  Beyond the massive Dakota Access pipeline, the Standing Rock Sioux have joined 49 other tribes and First Nations to create a united front against the full suite of new pipelines and other proposed infrastructure projects that would entrench dependence on oil.  This leadership offers new hope for keeping oil unburned.  But it is reductive to call Dakota Access the “next Keystone” as many commentators have done.  Above all, this is a fight for justice, tribal sovereignty, and fundamental rights to protect land and water, to keep culture and “survive as distinct peoples,” as Leonard Peltier recently put it.    

For my organization, Earthjustice, it is an extraordinary privilege to represent the Tribe in a lawsuit challenging the federal government’s deeply flawed process for permitting the pipeline.  This 1,200 mile-long project is going forward without any comprehensive environmental review or meaningful consultation with the Tribe, as Dakota Access secured the necessary approvals from the U.S. Army Corps of Engineers using a self-service permitting scheme that is urgently in need of reform.  While the Corps has insisted that the Tribe’s concerns about threats to water are unwarranted, the pipeline’s original route was shifted toward Standing Rock when it became clear that a leak or a spill would contaminate drinking water in the relatively prosperous, overwhelmingly white city of Bismarck.  The Tribe did not have any meaningful say in that decision, and now the Tribe bears the risk of poisoned water.  Meanwhile, the companies building the pipeline have rushed to bulldoze and destroy ancestral burial grounds that lie in the route’s new path.  

For the Sioux, it’s a painfully familiar story.  As Chairman Archambault wrote in a recent op-ed that ran in The New York Times:

This is the third time that the Sioux Nation’s lands and resources have been taken without regard for tribal interests. The Sioux peoples signed treaties in 1851 and 1868. The government broke them before the ink was dry. When the Army Corps of Engineers dammed the Missouri River in 1958, it took our riverfront forests, fruit orchards and most fertile farmland to create Lake Oahe. Now the Corps is taking our clean water and sacred places by approving this river crossing. Whether it’s gold from the Black Hills or hydropower from the Missouri or oil pipelines that threaten our ancestral inheritance, the tribes have always paid the price for America’s prosperity.

To say that America’s prosperity comes at the tribes’ expense is a gentle critique given the history.  Fossil fuel development and its flip side, climate change, represent a new assault on the tribes, and that injustice resonates around the world.

Indigenous people including the Standing Rock Sioux are unifying in an unprecedented way to combat that injustice, and they are enjoying tremendous success.  This past spring, the Lummi Nation successfully enforced their treaty-protected fishing rights to block the largest coal port proposed in North America.  Shortly before that, the Lax Kw’alaams First Nation in British Columbia turned down $1.5 billion from the oil giant Petronas, blocking a massive liquefied natural gas (LNG) plant in fragile salmon habitat.  And these inspiring efforts are not exclusive to North America.  Invoking their traditional land rights, the Wangan and Jagalingou peoples of Australia are standing between India’s Adani Group and what would be the world’s biggest coal mine (and another blow to the Great Barrier Reef).  Meanwhile, in India, tribal protests are blocking an extraordinary number of new coal mines—at great personal risk to the protesters involved.  These are just a few examples among many.

The common thread is that indigenous peoples around the world are leading essential action to preserve the planet.  To quote Rebecca Adamson, the founder of First Peoples Worldwide, “It is not a coincidence that 80 per cent of the world’s remaining biodiversity is to be found on indigenous lands.” 

With the gathering of so many indigenous leaders at Standing Rock, there is an unprecedented opportunity —and pressing need —to support their efforts in a sustained way that honors their priorities.  Adamson makes the point that “less than one tenth of a percent of the hundreds of millions of aid and philanthropic dollars going to prevent, mitigate and adapt to climate change goes directly to indigenous peoples.”  Even putting aside the unfairness of that allocation, it is out of step with the outsize contribution that indigenous leaders are making.

Which brings us full circle to progress in the Dakota Access fight.  On September 9, a federal district court denied the Tribe’s request for a court order blocking further construction, but minutes after the opinion issued, the Justice Department and the Army Corps issued a joint statement announcing their desire to revisit approvals for the project in light of the Tribe’s concerns.  The Corps has deferred the grant of final approvals needed to route the line under the Missouri River, and the agencies have promised to initiate “a formal, government-to-government consultation,” stating that “this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.”  While the future of the Dakota Access pipeline is still very much in question, this remarkable announcement represents a dramatic shift in position and tone by the U.S. federal government.  That shift is a testament to the power of the movement that is growing in North Dakota. Now is the time to help it grow.

Earthjustice wields the power of law and the strength of partnership to protect people’s health; to preserve magnificent places and wildlife; to advance clean energy; and to combat climate change.  We provide free legal representation, communications and other support to a broad array of clients including tribes and indigenous peoples throughout the U.S. and around the world. 

Trip Van Noppen serves Earthjustice as its President, leading the organization's staff, board, and supporters to advance its mission of using the courts to protect our environment and people's health. After earning degrees from Yale and the University of North Carolina at Chapel Hill, Trip clerked for a federal district judge from 1980–82. He then practiced law in Raleigh, NC, from 1982 until 1997, in a litigation practice emphasizing civil rights, employment, environmental, and toxic tort cases. In 1998, Trip joined the Southern Environmental Law Center and became director of that organization’s Carolinas Office. Both in private practice and at SELC, Trip has handled a variety of environmental cases and cases involving access to the courts. He was named North Carolina’s “Air Conservationist of the Year” in 1996 and has taught environmental justice as a visiting scholar at Duke University.