The movement to designate rivers, lakes and other natural features legal “persons” with rights to self-preservation and legal redress is spreading through Indigenous communities in Canada. Will Ontario embrace the resolutions as a way of protecting its natural bounty?
Lake Erie, person-in-waiting: The City of Toledo passed a bill of rights for Lake Erie that has since been struck down.
For some, arrival at the marina marked the end of a successful day. But for 16-year-old Anellah Orosz and her younger brother Deklan, members of the Caldwell First Nation Youth Advisory Committee, the event was just the beginning of a bigger quest—a youth-led initiative to win recognition of legal “personhood” for Lake Erie. They chose last summer’s challenge for their campaign kickoff because its goal of protecting the lake was a great fit with their project. “We want to grant Lake Erie personhood status because we believe water and nature deserve protection and respect, rather than treating it as something that we can own or as an exploitable resource,” says Anellah.
In time, the youth committee wants their nation to adopt a band council resolution that recognizes Lake Erie as a living entity under Indigenous law. “If we can get the band council to do that, we will then ask other First Nations, including the nations across the lake, to follow suit,” says Darryl van Oirschot, a Caldwell administration staff member whose role includes supporting the youth committee. Not long ago, the idea that a few young people from a small First Nation community could mount a credible personhood campaign for one of the Great Lakes might have seemed far-fetched. But in February 2021, the Magpie River in eastern Quebec was granted legal personhood, the first time a river received such recognition in Canada—and, in the eyes of some, what is achievable and realistic changed.
The Magpie River
This importance stems from the fact that the resolutions allow for the creation of local legal guardians to ensure the river’s rights are respected. The guardians would potentially have standing to speak for the river in response to external development proposals or legal disputes, just as corporations currently have standing as “persons” in the eyes of Canadian law.
While the exact implications of the Magpie case will not be known for some time, it seems increasingly clear that it is not a one-off. Since the announcement, Cárdenas, whose organization is developing its own personhood campaign for the entire St. Lawrence, says First Nations in five provinces have contacted her to discuss recognizing other rivers as persons. “It feels very encouraging,” she says.
RECOGNITION OF THE RIGHTS of nature—itself part of a broader emerging body of law called earth law, which works to protect, restore and stabilize the functional interdependence of Earth’s life and its support systems—is a relatively new concept world- wide. It was first applied by a provincial court in Ecuador in 2011 with an injunction recognizing the natural rights of the Vilcabamba River, and recently reaffirmed there in December by the country’s highest court in a case involving the Los Cedros protected forest. Five years ago, the Whanganui River in New Zealand became the world’s first river to be granted personhood. Similar measures have since been applied in Colombia, India and the United States. However, in at least two cases—personhood of the Ganges River in India and a bill of rights for Lake Erie passed by the city of Toledo—courts have struck down the resolutions on varying grounds.
The Magpie River resolutions have not been tested in court, and since legal personhood for nature does not currently exist in Canadian law, some people wonder if such resolutions would withstand a legal challenge. Lawyer Sara Mainville, a partner at Olthuis Kleer Townshend in Toronto and a former chief of Couchiching First Nation, says the resolutions nevertheless have solid grounding in Canadian common law understanding of who has governing authority over a river or lake. “The main rights holders are the governing bodies around a geographic area—for the Magpie, it’s both the Innu and the regional government that made those resolutions,” she says. “As long as the persons granting the legal ‘personality’ and the guardians are from the governing bodies, I think it resolves the controversy.”
Kelsey Leonard, the Canada Research Chair in Indigenous Waters, Climate and Sustainability at the University of Waterloo and enrolled citizen of the Shinnecock Nation, calls the Magpie example “inspiring” specifically because of that co-governance structure. “I’m hopeful that it can be a model for other types of arrangements where we bring Indigenous knowledge and Indigenous leadership in water governance and water justice to the table with non-Indigenous entities to say, ‘We have a shared interest in this water system, how can we ensure that it’s protected?’”
In 2019, Leonard gave a TED Talk on personhood called, “Why lakes and rivers should have the same rights as
humans,” which has received more than 3.3 million online views. She notes that from her perspective as a Shinnecock woman, water has always been regarded as a living being and that agency is reflected in many Indigenous laws. While most rights-of-nature declarations to date have Indigenous origins, their adoption into Western legal frameworks reflects a growing recognition among non-Indigenous people that when it comes to protecting water, biodiversity and climate, the status quo within our legal system is not working.
Leonard says that Indigenous assertions of rights involving land and water often “face a swift and fierce backlash,” but in spite of this Indigenous Nations are moving forward with initiatives to protect the natural world. That was the case for the Anishinaabe of Treaty 3 in northwestern Ontario and eastern Manitoba. In 2019, the nation completed and ratified the Nibi Declaration, a document outlining responsibilities to protect water and the environment that ensures the spirit of Nibi (“water” in Anishinaabemowin) is central to governance within the territory. “The Nibi Declaration provides a base of knowledge and decision-making throughout the watershed,” says Aimée Craft, a professor and research chair in Indigenous governance at the University of Ottawa’s faculty of law.
An Anishinaabe-Métis person from Treaty 1 territory in Manitoba who collaborated on the Nibi Declaration, Craft says the Treaty 3 nation is now exploring the possibility of recognizing personhood for Lake of the Woods, which is within its territory. “We haven’t taken that step yet because everyone wanted to have a good sense [of ] whether or not personhood was a fit,” she says. “The Nibi Declaration itself is really an expression of Anishinaabe law. Personhood would be sort of the Western mechanism to help implement Anishinaabe law. It wouldn’t be replacing the declaration, it would be in addition to it, and it would hopefully be done with recognition from the settler state, provincial, federal and local governments around Lake of the Woods.”
Craft is also helping the Lake Winnipeg Indigenous Collective weigh the option of declaring personhood for Lake Winnipeg. The challenge in both cases, she explains, is that a personhood declaration brings added responsibilities and costs for the authorities that enact it and can spark disagreement about who is the water body’s appropriate representative. Granting a lake the right to sue also means it could itself be sued if, say, the water made residents ill or caused physical damage. “That’s one of the cautions and hesitations that some have expressed.”
Anellah Orosz acknowledges being inspired by youth leaders around the world, including Greta Thunberg. “We also want to be a part of [that movement],” she says. “We want to help preserve the environment for the next seven generations and beyond. That’s a big part of Caldwell’s beliefs.”
Caldwell Marina, Point Pelee, Lake Erie