Ecocide and climate lawsuits at the ends of the world / Bronwyn Lay & Anders Dunker

A conversation with Australian environmental lawyer and theorist Dr Bronwyn Lay, who currently works with climate litigation and legal rights for communities made vulnerable by climate change-related disasters. Known for her important work to help ecocide gain recognition in international courts together with Polly Higgins and Baltasar Garzón, she also has a background as a fire-fighter – or pompier – in France and as a philosopher with European Graduate School in Saas-Fee, Switzerland. Her groundbreaking book, Juris Materiarium – Empires of Soils, Earth and Dirt (2016), explores law, the material foundations for life and our relation to nature. She combines direct experience on the ground in areas struck by disasters with theoretical reconsideration of national and international law, exploring its shaking foundations and deeper roots in a time of planet-wide climate change. With gigafires and floods, new uninhabitable zones have begun to appear and expand widening the gap between the state and its vulnerable inhabitants.

AD: In some ways, looking at Australia from the outside, from countries that are less touched by climate and environmental disasters, feels like looking into the future. We’ve all sort of grown up with all these examples of runaway fauna and all these sorts of ecological issues historically. For instance, I just read that you have no less than one million wild camels, who struggle to survive and put further pressure on lands already made more fragile by climate change. Then, there’s the Great Barrier Reef, the greatest coral reef on the planet, which is dying due to coral bleaching and ecological imbalances. On top of that,  there are fires, and now the floods, plus the used coal mines that are being planned on Aboriginal ground. You have a lot on your hands?!

BL: A mess. Recently, the famous American climatologist Michael Mann was saying: «The worst continent to live in the world in climate change is Australia.» And although we’ve had our issues with inequities, particularly with First Nations, we consider ourselves pretty developed, so these are problems that our identity will find hard to reconcile, I think.

AD: Since all these problems happen on such an enormous scale you are perhaps forced to deal with it in a different way. Can Australia become a vanguard in its kind of a vanguard in climate litigation and environmental law?

BL: Oh, on the ground, yeah. On the ground. But our environmental laws are shit. So that’s where we’re going to struggle in terms of litigation. Other countries have better laws that they can leverage off. But you know, when you’re talking about Australia, maybe I’m reflecting on the last couple of days where I’ve just felt a lot of grief around the cognitive dissonance that we have. We are living with these extremities of climate impacts. And we are recognizing in the law and in the parliaments that climate change is real and it’s causing these extreme incidents. And yet we still are opening new coal and oil and gas mines, the cognitive dissonance is unbelievable.

AD: We see some of the same in Norway. We keep prospecting for oil, while at the same time, we try to present ourselves as being at the forefront of climate change policies.

BL: Yeah, but do you have the big impacts? I mean, are the impacts as grave as here?

As we know with the shock doctrine and with disasters, the state either abandons local communities, or it sweeps in and takes over.

AD: No, we don’t. What would happen if we had? I don’t know. I’m not sure.

BL: Because the thing that surprises me is that our decision makers are truly physically present and have to daily deal with the consequences of these impacts which are so extreme such as smoke inhalation, and then they can turn their body and make a decision to put in a coal mine. It seems to be the foundation of this country that we constantly have to push the environment away and not be unified with it, because then we would have to recognize that it is stolen land that doesn’t belong to us.

AD: So colonialist ideology that is reflected in practice and in language as a kind of war on nature?

BL: Yeah, I think so, but it manifests a lot more subtly than the language of war. It manifests more like family violence, I suppose. On one hand you say you love it, and with the other hand you hit it. This is how our relationship to nature is. It’s more like an intimate betrayal, an intimate violence.

Fires and floods

AD: Where there should be care toward nature, there is negligence and abuse! You not only worked with Ecocide-law internationally, but philosophically explored our mutual relationships with the natural and material world in your book Juris Materiarum – Empires of soil, dust and dirt. Caring for soils is a slow, but rewarding effort, and it has become a major topic in our times, since also metaphorically it is about not losing earth, the lands we live in, on and with. Floods and fires make such patient work even more difficult, momentous and disastrous as they are? After the year of megafires, you have now had mega rains causing major floods?

BL: I was actually up in Queensland when the floods hit. We were stuck up a mountain for seven days, locked in as all-around the roads and land was shifting. It was scary, the rain came down – boom, boom, boom, boom – I never heard anything like it before. We couldn’t leave the property or even go around it because of landslides, mudslides. The flood makes mud, and with that dirt shifts, dirt moves. Fire decimates, completely, to the point where everything’s gone, and you are left with a tabula rasa. Floods pick stuff up and dump it somewhere else. Not only were people’s houses muddy, but floods also disperse particles and works like a wet dust storm that sticks to everything. All the soil goes up to the rooftops of the houses and when water drops away the mud and the soil are left stuck to everything making mold. You have to deal with all these dirt remnants in a climate changed landscape. These are small ecocides that become part of a bigger national conversation that is very scary, about the new reality of uninhabitable land. Maybe some areas should have never been settled – or rather invaded. Maybe humans should not be living there.

AD: People become climate refugees in their own country, and whole areas may become abandoned. Even if our earth will not become uninhabitable as such, as some pessimists have claimed, it seems evident that uninhabitable zones are more and more common. How does one deal with that politically on a national level? 

BL: After the floods, these lands won’t necessarily be uninhabited, since it is likely that high climate impacted areas is where the poor will be living, and where those made poor by climate change will be forced to live. Their precarity and their vulnerability will be exacerbated due the potential withdrawal of services as they are becoming ‘too risky and costly’. In terms of legal rights and the social contract, that’s quite a difficult conversation. So only the rich will be able to build climate-safe housing and they will kind of go up the hill. So those lands won’t necessarily be uninhabited. They may be uninhabitable by the privileged, but those who are made poor will go to live there, and so their precarity and their vulnerability will be exacerbated as infrastructure services and legal rights are withdrawn. Part of Queensland is just not privately insured for cyclones, so it’s a government funded insurance scheme now. I mean, the insurance companies are going to go broke with these extreme weather events.

AD: The clause of force majeure in insurance law comes to mind here: In many legal systems, this legal denomination for radically unpredictable and uncontrollable incidents is formulated as an “act of God”. To a secular mind, the notion of God would be substituted by Nature, but then we have a problem, since the floods are ultimately caused by climate change. In California the first environmental litigation ever was during the later phases of the gold rush, where miners dug out whole mountainsides spraying them with power hoses in the 1860s The rivers got so full of mud that all the salmon died by hundreds of thousand, and farmers got their fields flooded. It was a man-made disaster – and the culprit could be found upstream. The salmon couldn’t say much and were silent victims, and the native americans who lost millions of kilos of fish were powerless. But the farmers, at least, sued the mining companies and won. Back then it was mining, today it is carbon pollution and metereological changes. If we go further back in the chain of events – farther upstream, so to speak, in the floods in Australia and other places – we find human causes for what is called natural disasters.

BL: Oh, my God, Anders, you can’t say the word «natural disasters» to me, have I talked about this? I have a trigger when anybody says «natural disasters»; It gives me a little bit of a conniption fit because there’s no such thing! And I hate it when politicians use it. I’ve got many books by my bed on this. So, in the disaster risk reduction space there’s no such thing as a disaster because it’s a mixture of all kinds of cultural and political factors. If we keep using the word «natural», we’re going to normalize it. And it also doesn’t come from nature. It’s our systems that created this. I’ll stop now.

AD: No, please don’t! It is interesting also psychologically because even if it’s not a legal lawsuit, people need to put it somewhere. It’s a question of meaning, and paradoxically it seems that people are more comfortable putting it on the shoulders of God or nature than on a person.

BL: You think?

AD: There’s an interesting book by Jean-Pierre Dupuy that is called A Short Treatise on the Metaphysics of Tsunamis (2015) His premise is  the fact that when interviewed, a lot of Japanese people from the Hiroshima-Nagasaki region talked about the nuclear bomb as a “tsunami”. They choose to call it a natural disaster,  rather than going into the history of it, the Americans, their own war-crimes and transgressions in Indonesia and China. The horrible bombings was evidently t something that was done to them, but they talked about it as something that just happened,  a tsunami.

We work so much with insurance in terms of climate change impacts, because that’s how we measure damage. Why are we using that as the measurement of damage, of harm? It’s pecuniary interest, it’s financial, it’s economical, it’s property. But why? Why?

The point of Dupuy’s argument is that we have to do with this violence that somehow needs to be given a place in culture and given a meaning. His argument then goes towards the economy, because the impersonal market takes the place of God. The financial interests and the prerogative of growth  drives the fossil fuel industry and causing the apparent tsunami of climate change. Through complex meteorological chains of cause and effect, economic decisions become a tsunami of mud in New South Wales, Australia. Blaming something bigger than yourself is not necessarily just a way to wiggle away from responsibility. It can also be the discomfort of acknowledging that it’s caused by humans.

BL: Our language is changing around these extreme weather events, and meteorological terms are changing. For torrential rains, we speak about “rain bombs”. That’s a tsunami and the nuclear bomb put together. But interestingly, in the expression «rain bomb» might hint at human agency and weather, working together. One of my new missions is to remove the word «natural» from «disasters.»

AD: What is a disaster? Do you have a working definition? When do you get to the point where it’s a disaster?

BL: Yeah. There are lots of working definitions. You have what they call natural hazards and when these risks meet vulnerable communities, when they collide, that’s when you have a disaster: when the human system can no longer respond adequately to the natural hazard. So, the disaster is us and the choices we make. This became really prominent with Hurricane Katrina, the decisions we make around levies, around adaptation and mitigation. Cause if we don’t make these decisions or make them badly, that causes the disaster. But if we do it well, then the natural hazard passes through and we’re okay and we don’t suffer catastrophic losses. “Natural disasters”, that’s the language of an evasive culture of refusing responsibility. And also, I hate it particularly when Scott Morrison, our current prime minister, uses it because he abandoned us in the fires. He abandoned us in the floods. He abandoned us with climate change. And when it comes out of his mouth, I feel a particular disgust. There is a particular abandonment of his responsibility when he says it.

Ecocide is genocide

AD: In Norway we have a national human rights institution (NHRI) called NIM.  They work with human rights, and They confirm that human rights are used more and more often to leverage climate issues legally. Ecocide law is different, it seems: you start out with a very basic understanding of rights, that it has to do with a social contract or some sort of contract, there should be both rights and obligations, as there are both benefits and burdens in belonging to any community, in any mutual relationship. This may be a very naive question, but isn’t it puzzling that we have a declaration of human rights and no declaration of human duties?

BL: I don’t think it’s naive. I think that’s the fundamental question! And then we think of ourselves as naive by asking these fundamental questions that should have been asked. What obligations do we have in exchange for the right to healthy relationships with each other and the earth? Rights without obligations is parasitic. What then are our obligations?

AD: If you look up the roots of our concepts of duties, the sources of obligations in our Western tradition, you come back to ancient Rome, and thinkers like Cicero. In his book on duties, he  would say that either obligations come from tradition, by decree of monarch or a political body representing the state – or obligations toward whoever you’re bonded with. He thinks of family, obviously, but philosophers in the generations following Cicero, cosmopolitan Stoics like Hierocles, advanced the view that the circle of bonds or sympathy could in principle expand to include all of nature. It makes sense to say that we have a duty toward nature as toward our parents, as these are what nurtured us.

BL: Sometimes the Romans have more advanced thinking than we do on this. I mean, the work of Mary Wood Natures Trust: Environmental Law for a new Ecological Age inspired the arguments in The Children’s Trust case in the United States which is still travelling through their legal system. That litigation is based on the public trust doctrine which has its roots in early Roman law.

The doctrine rests on the understanding that some natural resources are so vital to public welfare and survival that private property cannot protect them so they must be held in common. What bonds protect the family? How large is our family? Kinship beyond the human? One of the things Irene Watson, an Indigenous jurist in Australia, talks about how our current laws have covered over what she names ‘raw law’, which is this symbiotic reciprocity, relational-based interdependence with nature as kin. We’ve just covered it over, with other laws, but it’s still there, and when you do some picking away at the origins of Western law, you find recognition of these essential, raw, bonds.

If you look at Exxon, they were hiding knowledge about climate change, they were producing misinformation.

This is like the work of Judge Weeramantry in the International Court of Justice. Some of his judgements excavated across diverse cultures and geographies towards recognizing universal bonds between humans and the eco-systems they lived with. Legal reasoning that is brave and honest can do this excavating labor. That’s why the Nature’s Trust work in the United States is interesting as one instance of the necessary slow unpicking or unpacking. Because we need to use everything we have to make a change. That’s why people are using human rights rather than only championing ecocide law or the rights of nature and animals.

AD: Anything that can shift the balance of power – there is a lot of talk about decolonizing nature, even giving autonomy and even personhood to landscapes, giving rivers  rights as unacknowledged human groups and individuals have been given rights.

BL: In the ecocide movement there are lot of analogies with the legal strategies used against abolition of slavery.

AD: It is beautiful to think of it as a parallel case to abolitionism of slavery and all that, but it is also heard that there are more slaves today than ever, even if slavery is forbidden everywhere. And you can easily get to the same situation with the destruction of nature: even if it’s condemned in principle, there are so many roundabout ways exploitation can be kept up, ways to inflict  and violence in hidden ways. The violence becomes diffused, fragmented.

BL: Greenhouse gases and carbon, are more  more than fragmented, they’re invisible. You can’t even see the fragments. Genocide and ecocide go together, because people need nature, they need eco-systems to exist. When nature is wiped out along with nature, it’s not ecocide anymore, but omnicide. The violence makes marks on bodies, but the bullet is slow, so to speak, so it becomes difficult to present evidence for the damage.

AD: The scale of violence is either too small or it’s too big.

BL: It’s both. And in ecocide, the forensics and the body-count are much more difficult. We work so much with insurance in terms of climate change impacts, because that’s how we measure damage. Why are we using that as the measurement of damage, of harm? It’s pecuniary interest, it’s financial, it’s economical, it’s property. But why? Why? These are the measurements of harm that we have and the instruments that we use of course, but these terms are also in service of another very harmful discourse, so they still need to be questioned.

AD: How do you put on trial a small contribution to a poisoning happening on a very grand scale? How do you even measure irreversible damages? What is irreversible is typically what has to do with life, irreplaceable life – and death. On the big side of things, ecocide is macro-criminal in the same sense as the Holocaust was. Genocide is so big that legal institutions had to think again to find a place to fit it because there’s no single individual human that can carry the weight of such acts. It’s almost too big for the law. How do you punish someone for destroying a rainforest that is 30 million years old and will never come back?  In your book you’re speaking about how you get to the limits of language, somehow, with very big and significant forms of violence.

The limits of language

BL: It is the limits of language, isn’t it? Because the overwhelm of this space is corporeal, intellectual, moral, ethical, economical and legal. If all of us are responsible, none of us are responsible. You can’t put culture on trial. It seems our laws and politics demand a habeas corpus, meaning it needs to be given a visible body, or a bodily victim. Fragmented, dispersed and ecological harm doesn’t settle into one body and that’s the legal challenge of our time.

We have no legal or other language for the violence we are committing. Australian law has property and ownership as its primary principle which seeps into everything. So that ownership and the quantification of any damage that occurs due to climate or material violence, remains within the prescribed, or fenced, language of property. Violence against the foundational relationships of life is locked out of this law which sees all that is non-human as property. In this logic, you can’t do violence against property, but you need pecuniary compensation for its loss, for loss of value. And even that is difficult to trace causally. But there is great work like the Carbon Majors Report from the Carbon Accountability Institute, whose research and statistics help us trace the lines of causation. The Nuremberg trials had to extend the law in order to grapple with genocide.

I also work in climate justice, which is looking at law reform and potential strategic litigation. I work with Environmental Justice Australia and with the Climate Council to change the law on the basis that the most vulnerable and the most marginalized are those that are going to get most hit. In some way, I have always struggled with that, just at a basic level of that really evil side of me – that wants to put someone behind bars. All the poor people go to jail. Why don’t we put the CEOs in jail? Because the people who come before international criminal court, are  primarily Africans. So, there’s a power problem in the system.

How can this kind of responsibility be made part of the legal system: Not to blindly obey to exercise personal and to be critical of seemingly rational planning which is ultimately violent?

AD: A racist bias, even there! Which reflects power dynamics and probably government interests, besides the power of corporations and their lobbyists. If you look at Exxon, they were hiding knowledge about climate change, they were producing misinformation. Maybe  these cases of wilful misinformation by companies and premeditation by individuals can be useful tools to sharpen ecocide arguments. A  lot of damage is inflicted in a generic way by nationally owned oil companies – corporations that are just seen as the basics of our economies, run of the mill national economics, even if it can also be seen as what you call slow violence? Is it worthwhile to criminalize decisions and policies, argue along the lines of premeditation and single out what the worst actors have done knowingly?

BL: We have to decide if we are thinking of negligence or if we are thinking of ecocide. When it comes to ecocide, I worked with Polly Higgins in 2015 and 2016 and she was an incredible trailblazer for ecocide law. Tragically she passed in 2019, too young. She spent her life advocating for ecocide law to be included as the fifth crime against peace in the Rome statute. She came up with a definition: “Ecocide is extensive loss, damage or destruction of ecosystems of given territory such that the peaceful enjoyment of the inhabitants has been or will be severely diminished”. It is a well-crafted definition that has also been used internationally but not without its critics. So, she gave back life to a movement that emerged after the Vietnam war but had been lagging.

AD: Olof Palme, the Swedish prime minister who was assassinated, was a staunch proponent of getting ecocide acknowledged en par with genocide law as crimes against humanity. And today we have Baltasar Garzón, who formerly worked with proceedings against Pinochet whose governments actively killed and tortured tens of thousands of people – in what has been called a political genocide.

BL: Polly and Palmewere quite close and worked together in terms of the definition. He was a big supporter of Polly’s work. And since she’s passed that work has continued. Her approach nuanced the legalities of a proposed ecocide law. She proposed strict liability in order to avoid the excuse of lack of intent. «I didn’t know. I didn’t know the consequences.» I wonder what she would think now when there’s more evidence emerging of the fact that there was knowledge. And now the revelations of prior knowledge of the climate harm continue to roll in. I wonder whether that would change her strict liability commitment. It’s becoming more and more evident that people are emitting carbon knowingly – and knowing the consequences. These things came up at Nuremberg. We have Hannah Arendt’s momentous book Eichmann in Jerusalem

AD: Which concludes in her powerful formula: “No one has the right to obey”. Arendt’s book is tellingly subtitled A Report on the Banality of Evil. Precisely by describing the nazi war criminal  as a banal bureaucrat who obeyed orders and his best to organize the extermination camps in a rational, efficient way, rather than a supervillain, she found a way to teach us a much deeper lesson about human nature and the nature of violence. Perhaps it can help us learn something about violence toward nature, too? How can this kind of responsibility be made part of the legal system: Not to blindly obey to exercise personal and to be critical of seemingly rational planning which is ultimately violent? How can the duty of care be built into the system?

BL: Again, with proximity and distance I always find myself returning to Michel Serres’ bonds in his great book The Natural Contract. The basis of law is in the bonds we have with each other and the earth: and we need to bring them in as the foundational legal concern instead of property. The connections, interdependencies, the links as the legal and moral foundation of our common worlds. These bonds can be distant or close, but if the law recognizes them, then it can do the forensic work of tracing them.

AD: The bonds are there before they come to be recognized in law?

BL: Yes. Bonds pre-exist the law. I think it’s a really convincing and almost universal argument, both legal and moral, against violence: Do no harm against these essential bonds. We have duties to nourish, protect, and heal bonds. It doesn’t get much traction and we don’t have the language for it, or we have refused and made minor such languages. The legal systems we have nourished and brought up also don’t have the language for it. So, the challenge is how to uncover bonds and the languages for them.

AD: These bonds seem to be more intact in Aboriginal understandings of law and in the legal concepts of the Māori in New Zealand.

BL: In New Zealand they have the gift of the treaty of Waitangi. It’s not a perfect treaty, but they have the Māori law. Waitangi was the name of a problematic treaty between the Māori people, and the Commonwealth, the queen in shared legal systems, shared land. It’s not perfect and the Māoris were taken advantage of historically, but even if there are a lot of issues with it, there’s still that awareness, and consciousness, and constant renegotiation of the law of Māori or legal origins. And I think that’s created with much more ease to do things like the Whanganui River.

The question is who gets to speak in law – and who gets to advocate for those bonds.

AD:  Which seems to mean that the bonds, as you talk about in your book, are typically acknowledged in Aboriginal jurisprudence and in the more relational Māori law. Property doesn’t even really apply, because the understanding of the land already precludes ownership. Which is not at all unreasonable, when you think about it, since property is a very abstract notion. When you declare that something is your property and if it’s not acknowledged by others, or if it’s not written in code, or if it’s not fenced off, it’s just an idea, almost a fiction.

BL: It’s a fiction, but a powerful fiction. The law is a fiction that becomes real, or it becomes real to the extent that it’s sort of written into the world, to the extent that a border or a fence becomes something physical, and it has very material impacts. If you’re going to argue in terms of relational law, what do you do with the fences? What do you do with the nation states? What obligations do we have with each other beyond national jurisdictions? Because Australia gets away with our pathetic emissions targets by claiming, «We don’t produce the emissions. We just produce the raw materials that goes to India, and they emit it.» What a dangerous ethical cope out.

AD: It is the same thing in Norway, where we export enormous amounts of oil and gas, while the government keeps counting our emissions domestically. While Australia exportsyour coal to India, who in turn tends to argue that they have a right to emit more, because of historical discrapancies, because it is their turn now. The right to burn coal and gas is often their political conception of “climate justice”

BL: And then the logic gets turned around again and we excuse inaction on false distance from consequences and harm. If India’s not going to stop it, then we’re not going to stop. Then it’s all this moral fudging of causation principles to wash our hands. These nation state borders and property fencing fuzz up our judicial and ethical logic and make us blind to compounding and complex harms being done.

AD: Norway is among the richest countries in the world, so if we don’t stop taking out fossil fuels and profiting from them, how can we expect other and poorer nations to stop? The lawsuit against the Norwegian government is due to be taken up in the European Court of Human Rights. With your long experience, how do you feel about the developments in environmental law in Australia, and the Sharma case, where eight Australian teenagers brought a class action claim as representatives of all Australian children, where they sought to prevent the approval of the expansion of a coal mine, based on Duty of Care and climate risks?  

BL: On appeal, the Federal Court agreed with the assessment of climate risks without any dispute, leaving it open for climate issues to be brought up again. But in this case, the claimants chose not to appeal, perhaps because they don’t want the High Court to make a decision on duty of care of the environment if it’s going to go against that duty of care. The underlying logic of the appeal reasoning was that this is a decision to be made in politics by the executive and that the judiciary can’t step into it. Both politics and the environment are untouchable by the law. Our environmental policies are awful, which sometimes makes me feel a bit hopeless about this country.

Law is about power, and maybe force. Bonds as the foundations of law could affect our understanding of Law’s power, like the inscribing of the laws of science upon our bodies. It’s really interesting, because the knowledge holders of those intimate bonds not only include First nations but all of us in the existence of our material relationships. Scientists and farmers and engineers all have an intense proximity with matter, with the material. And it’s interesting how the scientists have been dismissed by the law for a long time.

AD: How have they been dismissed by law?

BL: Well, the climate scientists have been dismissed in terms of the attribution and causation. Similarly, in the disaster recovery space, farmers who hold our agricultural food security have been quite abandoned in the general understanding of the situation. The question is who gets to speak in law – and who gets to advocate for those bonds.

AD: The state should have a role in protecting both the land and the people? Is there no effective or credible way of doing that through the political or legal system?

BL: The public demand for the Defense Force to respond to climate change impacts has been a big thing since the fires. They aren’t trained in disaster response or community-based recovery. The army just went in February in New South Wales and Queensland to do the recovery. Panic policy results in calling for the Army to save us from the weather.

AD: Something drastic and frightening happens when the problems reach a military level where the language of security begins to dominate. Now, in Norway we have the Ukraine war on the doorsteps of Europe, and the threat from Russia. At the same time the Norwegian government now says – of course – that we need to provide, you know, oil and gas for Europe – and they’re building new pipelines to the continent. This is also the language of the state of exception – so now the state is exempt from climate policies and environmental restrictions, because of necessity.

BL: The necessity. “Necessary”. It does worry me. So, the dilemma in Australia is that we do need to have boots on ground, bodies on ground that can immediately come and do that hard grunt work for a community that’s exhausted, traumatized and diminished. But does it have to come from the military? Do we need something more nuanced? If they become embedded in those communities and the structures that emerge in recovery, then we will see emergency, military, hierarchical culture in the institutions and norms that emerge. Do we want that? I don’t think we do. We need a different approach rather than running with inherited responses from last century. On the other hand, there are the abandonments seen explicitly in Hurricane Katrina.

AD: Such states of exception also prepare for all kinds of shock doctrine maneuvers, such as the ones Naomi Klein described in relation to Hurricane Katrina, where different parties profited from the destruction. Where there’s money to be made or there are power advantages to be had from controlling the aftermath of disasters, where local communities are often weakened, confused and helpless, and where relief in any form – also in forms that are harmful to the community’s integrity in the long run – is welcomed out of sheer desperation. So, what is your experience with such disaster-ridden communities in Australia? Do you see better solutions on the horizon?

BL: I’m finding very interesting to observe with the communities hit by both floods, but also two and a half years on from the 2019 black summer: The rise of community-controlled organizations is an attempt to find new governance models. So, this town of Mallacoota has set up a democratic experiment in the recovery space, because they are quite removed, three hours from their local council. It is a very strong, thick community with a history of conflict around Abalone fishing rights, and a few other things.

There might a tipping point. Some kind of legal case where it just becomes a tsunami that it’s impossible to resist.

So, they wanted to have control and voice over their own recovery and set up a community organisation called MADRA. In the end,  they actually got the Australian electoral commission to send voting slips to all the people in Mallacoota in the town to vote for who would be on this committee. So, there’s 12 of them on the committee elected, out of 70 who nominated and they have a huge amount of influence, for good or for bad, in negotiating bushfire recovery committees’ decisions over things like fuel reduction issues, down to who gets to come in to work on reconstruction. What are they? An extra judicial body or quasi representative? The power they have is theirs only because the community of Mallacoota voted and gave it to them.

So, they don’t have any enforceable rights. It’s the persuasion of the impacted voices. That is their power. And we’ve been asked, the organization I work for, by other impacted communities to advise them on how to set up governance structures in order to obtain self-determination really, of these communities. As we know with the shock doctrine and with disasters, the state either abandons local communities, or it sweeps in and takes over. And then we get an  emergency culture that dominates the decision making mode. I think that example is very interesting in terms of democratic experimentation in the time of climate change.

AD: A movement in the opposite direction of abstract property rights and the irresponsible global power of giga-corporations. Smaller autonomous units that are self-governing would be more resilient and wiser ecologically, because they are more in touch with their own realities? There is a hint of decolonialization in this development.

BL: It gets back to that proximity, and that distance from the local council. Why would they be governed by something that is three hours away, and is never here? It is all about that proximity to something, and it can be a beautiful place to be. that’s where the connection with nature is thick and strong. So that proximity remains  a space where we can build something new, the voices of the proximate.

AD: And as a global society, is there any chance that we can learn collectively, that our institutions crespond to and incorporate the damage we do to our planet precisely because of our way of life and the laws that protect it – while we threaten the very earth we live on, both soils, our territories and the planet as such?

BL: Everyone’s coming from disparate parts. You’ve got the economics, you got the politics, you’ve got the war, you’ve got human rights. Then, there might a tipping point. Some kind of legal case where it just becomes a tsunami that it’s impossible to resist. That sounds wonderful. But with respect to Ecocide law, it would be on an international level, and it would need to be incorporated into national law, and become embedded within national jurisprudence. There is still the hurdle of the national state, borders, property. The ecocide movement is international. It starts off being symbolic and an intention, but there’s no obligations to it until it’s taken into their own borders, their own legislatures.

I think a lot of us share this strong feeling that this way we’re living is unsustainable, legally, morally, ethically, physically, materially, all of it. So, it’s going to change. It’s going to have to change.


Photo of Bronwyn Lay: Hanna Lay Clark.

Anders Dunker works as a journalist and philosophical author, focusing on the environment, technology, and the future of the planet. His works includes a series of interviews with leading international environmentalists for the Norwegian journal Samtiden, that was published as Gjenoppdagelsen av Jorden (2019) and translated into English in 2021 as Rediscovering Earth (O/R books).

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