Kelsey Leonard: What If Lakes And Rivers Had Legal Rights?

Aug 7, 2020

Part 4 of the TED Radio Hour episode Our Relationship With Water

Water is life. Yet in the eyes of the law, it remains largely unprotected. Legal scholar Kelsey Leonard says granting water bodies legal personhood can transform how we value this vital resource.

About Kelsey Leonard

Kelsey Leonard is a legal scholar and water policy expert. She represents the Shinnecock Indian Nation as the Tribal Co-Lead on the Mid-Atlantic Committee on the Ocean, which is charged with protecting and managing the coastal resources of five Mid-Atlantic states. She also serves as a member of the Great Lakes Water Quality Board of the International Joint Commission.

Leonard has PhD in Comparative Public Policy from McMaster University, where her research focused on Indigenous water security and its climatic, territorial, and governance underpinnings. She holds a Masters of Science in Water Science, Policy and Management from the University of Oxford. She also holds a BA in Sociology and Anthropology from Harvard University and a JD from Duquesne University.

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MANOUSH ZOMORODI, HOST:

On the show today, Restoring Our Relationship With Water. Earlier in the show, we talked to Shinnecock legal scholar Kelsey Leonard. And we left off with the story she was told by an Anishinaabe leader that a day would come when an ounce of water cost more than an ounce of gold.

(SOUNDBITE OF TED TALK)

KELSEY LEONARD: And she looked back at me directly. And she said, so what are you going to do about it? That's why I'm here with you today - because I believe that one of the many solutions to solving the many water injustices we see in our world today is recognizing that water is a living relation and granting it the legal personhood it deserves.

So to do so, we need to transform the way in which we value water. We have to start to think about, how do we connect to water? Usually, someone might ask you, what is water? And you would respond with rain, ocean, lake, river. You might even understand the sacred essentiality of water and say that water is life.

But what if I asked you instead, who is water? That type of orientation fundamentally transforms the way in which we think about water, transforms the way in which we make decisions about how we might protect water, protect it in the way that you would protect your grandmother, your mother, your sister, your aunties. That is the type of transformation that we need if we are going to address the many water crises we see in our world today. And so we need to grant legal personhood to water.

We've granted legal personhood to corporations. In the U.S., the Supreme Court found in Citizens United that a corporation was a person with similar protections under the Constitution, such as freedom of speech, and applied similar reasoning in Hobby Lobby, finding that a corporation had the right to freedom of religion and defense against implementation of the Affordable Care Act for its employees.

Now, these are controversial cases. And as a Shinnecock woman and a legal scholar, they make me question the moral compass of the Western world, where you can grant legal personhood to a corporation but not nature. You see, legal personhood grants us the ability to be visible in a court of law and to have our voices heard as a person protected under the law. And so if you can grant that to a corporation, why not the Great Lakes? Why not the Mississippi River? Why not the many waterways across our planet that we all depend on to survive?

ZOMORODI: So your solution for this really surprised me. I had not heard it before. You are advocating for granting legal personhood to water. What does that mean for people who maybe haven't heard of it?

LEONARD: Yeah. So affording legal personality is the recognition that nature has rights, particularly that the water has rights - because there's not just the aspects of, what do we need from water as humans to survive, but what does the water need to survive? It's a more holistic approach that provides for the water body to be able to exist, flourish and naturally evolve.

And this is separate from something that you might see in the Clean Water Act, which really focuses on the chemical, biological and physical integrity of water when you think about the way in which we manipulate water systems with dams and other hydroprojects. Legal personhood actually says, is that dam in the best interest of the water, in the best interest of the whole ecosystem? In that way, legal personhood affords rights of protection to the water to protect it from pollutants, from human-caused climate change impacts and from manmade contamination.

And I think that that's a really key point there, that second one about climate change, because many of our existing legislative tools, including the Clean Water Act, haven't really been modernized to address our current climate crisis. And so that's a big part of how we see legal personhood for water transitioning our society and shifting our society to a more just and climate just and water just world.

(SOUNDBITE OF TED TALK)

LEONARD: And this is not something new for us as Indigenous peoples. Our Indigenous legal systems have a foundational principle of understanding our nonhuman relations as being living and protected under our laws. And even for the Western world, environmental legal theorists have argued for the rights of nature since the 1970s. But we need to do better. We need to change. As human beings on this planet, we are not superior to other beings. We are not superior to the water itself.

We have to learn how to be good stewards again. We can create laws through which we grant legal personhood to water. We can start to honor the original treaties between Indigenous peoples and non-Indigenous peoples for water protection. We can appoint guardians for the water that ensure the water's rights are always protected. We can also develop water quality standards that have a holistic approach that ensure the well-being of the water before our human needs.

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ZOMORODI: And there are some places who are actually doing this, right? My understanding is that Bangladesh has given - granted legal personhood to all of its rivers. There's a river in New Zealand and I believe one in California, as well. Can you tell us about how those work?

LEONARD: Yeah. So there are definitely so many nations around the world and communities around the world that are working actively to embed legal personhood for water in their judicial systems and in their legal systems. One of the most popular or notable cases is the Whanganui River in Aotearoa, New Zealand, where legal personhood was granted to the Whanganui River with a system of guardianship that was set up among the Maori community, the iwi community of the Maori, to serve as guardians for that water body. And similarly, as you mentioned, there is a river in what's currently known as California, the Klamath River, that was granted legal personhood by the Yurok tribe.

And so the reason that that is so important is the legacy and the history of water colonialism in those two countries and areas has historically disenfranchised Indigenous peoples from being able to participate in the governance and protection of water. And so legal personhood actually restores the ability for Indigenous communities and peoples to adhere to and fulfill their responsibilities as stewards and protectors of water. And so it's a really unique kind of innovation to contemporary water conflicts and struggles.

ZOMORODI: But are they working? I mean, it's one thing to say, like, yes, we will grant you the thing that you want. But if this body of water doesn't actually get cleaner or safer or get real protections, then is it kind of just a nice story that makes people feel better?

LEONARD: I think, you know, that's a really important critique. But I think it's maybe a bit premature. Indigenous societies and Indigenous legal systems have operated and utilized legal personhood for nature and for other living entities for centuries and have been successful. So that is one thing to say, no, it's not just sort of perfunctory or feel-good. It actually has lasting results in understanding sustainability.

And I think that that's a big aspect of where we go from here. And it needs to be context-specific. What's going to work for the Klamath River is not necessarily going to work for the Whanganui River is not necessarily going to work for the Thames River in London. Right? So we really have to be local and context-specific.

But from within an Indigenous context of North America and what we call Turtle Island, there are a few steps. And firstly, there is a need to honor existing treaties. So many of the treaties that Canada and the United States first signed with Indigenous nations actually talk about water in really specific instances and terms. And those treaties have not been honored. And so I think when we start to think about, what does legal personhood for water look like, the human right to water? - it does start with going back to those original treaties and honoring those terms.

Too often, law is created for communities that they are not reflective of. So we need to have law for the people driven by the people. And I think that's about creating new collaborative processes for legal reform.

(SOUNDBITE OF TED TALK)

LEONARD: So in the words of Nokomis, what are you going to do about it? What are you going to do for the water? Well, you can call your local politician. You can go to a town meeting. You can advocate for granting legal personhood to water. You can learn about the Indigenous lands and waters that you now occupy and the Indigenous legal systems that still govern them. And most of all, you can connect to water. You can restore that connection. Go to the water closest to your home and find out why it is threatened.

But most of all, if you do anything, I ask that you make a promise to yourself that each day you will ask, what have I done for the water today? If we are able to fulfill that promise, I believe we can create a bold and brilliant world where future generations are able to form the same relationship to water that we have been privileged to have, where all communities of human and nonhuman relations have water to live because water is life. Tabutni. Thank you.

(APPLAUSE)

ZOMORODI: That's Kelsey Leonard. You can find her full talk at ted.com.

Thank you so much for listening to our show this week about Our Relationship With Water. To learn more about the people who were on it, go to ted.npr.org. And to see hundreds more TED Talks, check out ted.com or the TED app.

Our TED Radio production staff at NPR includes Jeff Rogers, Sanaz Meshkinpour, Rachel Faulkner, Diba Mohtasham, James Delahoussaye, J.C. Howard, Katie Monteleone, Maria Paz Gutierrez, Christina Cala and Matthew Cloutier. Our theme music was written by Ramtin Arablouei. Our partners at TED are Chris Anderson, Colin Helms, Anna Phelan and Michelle Quint.

I'm Manoush Zomorodi, and you've been listening to the TED Radio Hour from NPR. Transcript provided by NPR, Copyright NPR.