Do rivers and trees on Borneo have legal rights? A Southeast Asian court is asked to decide, and the answer is not as simple as it might seem.
By Paul Spencer Sochaczewski
Over a weekend break during the trial, I invited Ledong to lunch so he could explain his audacious legal approach.
It was not uncommon for indigenous groups worldwide to argue that they had ownership of natural areas that dated back centuries, he explained. Indigenous groups also argued, often successfully, that some natural sites were Sacred Natural Sites, or SNS in conservation jargon.
These folks made the case that a particular forest, lake, mountain, meadow, river or grove had special cultural and religious importance, and therefore should be saved not only for conservation reasons but also because they are, as Ledong said, “important and, well, sacred.”
But that wasn’t the tactic Ledong was using in this case.
* * *
During the trial Ledong introduced a new legal argument based not on standard Western-Jurisprudence but on the opposite concept of Ethno-Jurisprudence.
It would not be humans who were fighting on behalf of nature, but rather nature fighting for itself. If you accept that spirits occupy a place or natural feature, you are granting that their abode has an innate right to exist.
Put another way, Ledong’s argument was that nature, in various forms, is a “juristic person.”
Many (well, to be truthful, most) legal experts scoffed at the Ethno-Jurisprudence argument giving legal status to spirits.
Balderdash! shouted one defense attorney who had learned his courtroom dialogue by watching BBC period dramas.
But during the trial, Ledong calmly cited numerous examples of case law in which Western-oriented courts upheld his approach.
In their national constitutions, Ecuador and Bolivia have recognized Mother Earth as a “legal person.”
River systems are often protected through Ethno-Jurisprudence decisions.
Indian courts have granted “legal person” rights to the Ganges and Yamuna river systems.
In at least two cases in Ecuador involving pollution of rivers, the courts have stated that the rights of nature prevail over other constitutional rights.
In 2017, after some 170 years of litigation, a New Zealand court recognized the status of the numina that inhabit each of the more than 240 rapids on the Whanganui River. That judgement, Ledong pointed out, has particular relevance to the Penans’ case. Ledong cited the decision that acknowledged the spirits of the river provide guidance and insight “in times of joy, despair or uncertainty.”
And in 2014, New Zealand became the first nation to give up formal ownership of a national park when it declared that the area, Te Urewera, has “all the rights, powers, duties and liabilities of a legal person.”
In 2010, the city of Pittsburgh, Pennsylvania, became the first U.S. city to declare nature a “legal person” during a case to ban “fracking” within the city limits.
The State of Hawaii heard a case in which a Native Hawaiian shaman testified that the numina that occupy the Mauna Kea volcano on Big Island would be furious if a telescope were constructed on its slopes. The court ruled in favor of the Native Hawaiian petitioners, and the telescope was not built.
* * *
Shaman Katong was first up. He gave his name, his occupation (“farmer”), age and place of residence. He was one of the last few hundred semi-nomadic Penans, and the question of where his home was located was tricky.
“Upper Baram River” was the best he could do. When asked, he confirmed that when he went into a trance, he wasn’t speaking for himself but merely relaying the voice of the tree spirit. “I have no idea what the spirit is going to say,” Katong said. “And I never remember what happened after I return from the spirit world.”
The judge was a large contemplative man with thinning hair who was proud of his legal prowess and humanitarian approach to the law. He had prepared for this kind of testimony, and before Katong went into an altered state, medical technicians applied sensors to his scalp and chest to measure changes in brain and heart activity. Katong was hooked up to a blood pressure gauge and a lie detector that measured changes in voice and temperature, as well as surface tension and moisture on his fingertips.
Ledong was slightly optimistic because Judge Aithihyamala was nearing the end of his career and had displayed courage in his recent decisions, sometimes finding against the government and big business.
“Whenever you’re ready Mister Katong,” Judge Aithihyamala said.
* * *
“What have you got there, Mister Katong?”
Ledong intervened. “These are the accessories he needs to enter a trance.” He pointed to the supplies Katong had just unpacked. Clouded leopard’s teeth. A smooth stone with a band of quartz running through it. A sliver of petrified wood. A kingfisher feather. Incense made from the sap of a forest liana. Kindling. And a bright orange Bic lighter.
“Sorry Mister Katong,” Judge Aithihyamala said. “No smoking inside a government building.”
“Your honor, these, er, things, are essential to help Katong enter a trance,” Ledong said.
“Improvise, Mister Katong. Improvise.”
(Want to know who wins the case? Read the final installment here.)
Paul Spencer Sochaczewski is a Geneva-based writer whose books include “An Inordinate Fondness for Beetles,” “Distant Greens,” “Curious Encounters of the Human Kind,” “Redheads,” “Share Your Journey” and “Soul of the Tiger” (with Jeff McNeely). This story is excerpted from “Exceptional Encounters: Enhanced Reality Tales from Southeast Asia,” which will be published by Explorer’s Eye Press in early 2018. The author can be contacted at: www.sochaczewski.com.