The Great Lakes and the Rights of Water

by Paige Therrian | Jul 10, 2023 | 7 comments

[Note: this essay is part of a series of six essays on How to Know about Line 5. You can read the series introduction and find links to the other essays as they are posted here.]

The inevitable environmental catastrophe Line 5 poses forces us to imagine a world tainted by the irrevocable damage of oil spillage, a world where the water is no longer beautiful and blue. It is void where once flourished immense and intricate ecosystems. It once supported our own lifeways, providing clean drinking water, fishing, recreation, travel, and tourism. If the waves of the Great Lakes were to crash black with oil against the Michigan shoreline, how would we survive?

In Michigan, we are lucky to be surrounded by 20% of Earth’s surface freshwater supply. Beneath the Straits of Mackinac, Enbridge proposes to reroute Line 5, a deteriorated 70-year-old pipeline that could quite easily and swiftly pollute the entire Great Lakes region with the millions of gallons of oil it transports per day. It’s not like it hasn’t happened before: in 2010, Enbridge was responsible for one of the largest inland oil spills in U.S. history, a ruptured pipeline leaking 1.1 million gallons of diluted bitumen over a span of 17 hours into the Talmadge Creek and Kalamazoo River, which empties into Lake Michigan.

The heart of the matter is that there is no way to safely operate oil pipelines and protect sources of water from the ever-looming threat of a pipeline rupture. Not just at the Straits of Mackinac, but at any other point along the miles of pipeline that run near the Great Lakes. Indigenous communities, above all others, understand most what this threat could mean for their communities as well as for the world. The maxim “Water is life”, from the Lakota “Mní wičhóni,” shapes Native relations to the natural world by acknowledging that water has an existence beyond sustaining our own. In the wake of the Standing Rock protests against the Dakota Access Pipeline, “Water is Life” has endured as an emblem of pipeline protest, spurring conversations about the rights of nature.

Faced with all we stand to lose, we turn to ways that preserve the water that provides life and livelihood. The aesthetic values and economic boons of the Great Lakes are often the focus of our conversations about water protection. For example, the Public Trust Doctrine posits that the public has a right to water as a resource, and thus it must be protected from pollution or destruction. This is the basis for the state’s revocation of Enbridge’s 1953 easement, as the operation of Line 5 violates the safety of the Great Lakes, and thus the safety of those living in the region. While this doctrine is a powerful tool to protect the health of our waterways, it nevertheless outlines a human-centric relationship with water, predicated on use and consumption, reducing water to a public good.

But if water didn’t serve our whims and sustain our survival, would we bother protecting it at all? What if instead we considered water worthy of protection not just for our sake, but for its own? If humans can’t protect water, what if it could protect itself?

In other words, we often discuss our rights to water and all that it provides; but it is not often that we discuss the rights of water. For instance, we commonly refer to lakes as “bodies” of water, and in doing so, our language explicitly applies personhood to water. But that way of thinking rarely extends beyond a turn of phrase; certainly it is not a dominant viewpoint in a society fixed in the mindset of colonial extractivism that fuels petroculture. Zoe Todd, Métis anthropologist and Indigenous scholar, remarks, “This is the thing about colonization: it tries to erase the relationships and reciprocal duties we share across boundaries, across stories, across species, across space, and it inserts new logics, new principles, and new ideologies in their place.”

As Potawatomi scholar Kyle Whyte describes it in “Our Ancestors’ Dystopia Now,” water is a spiritual and sacred entity; it is alive, not inanimate. It is not insular or isolated, but interconnected with all parts of the natural world. It has the same rights as any human, whether those rights are legally recognized or not. Similarly, Bad River Band of the Lake Superior Tribe of Chippewa Indians Chairman Mark Wiggins describes the “spirit transfer” between the Great Lakes and the Bad River and other connected waterways, explaining, “That’s the actual scientific truth. And the rest is how we as human beings fragment, compartmentalize, put things in the science catalogs, and then retrain our minds and hearts to think of things differently. But the absolute natural law is that that hydrology is very direct and very connected.”

While Indigenous communities have for centuries lived by the belief that nature has rights, non-Native legal systems are beginning to recognize that this premise might just hold water. In 1972, the Supreme Court case Sierra Club v. Morton  marked a bellwether moment that brought nature’s rights to the forefront of legal thought. After The Walt Disney Company proposed to build a ski resort within Sequoia National Park that would severely disrupt the landscape, the Sierra Club attempted to block the project by suing on behalf of the forest. In the end, the Court decided that the Sierra Club did not have legal standing because it was not directly injured by the corporation. While the ruling ultimately denied the rights of nature, Justice Douglas’ dissent of the decision made clear that there are those at the jurisprudential level who recognize the sentience of the environment: “Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen,” Justice Douglas wrote. “The voice of the inanimate object, therefore, should not be stilled.”

Douglas’s perspective directly opposes the colonial view of natural entities as property and “resources” and disrupts the capitalist framework that upholds it (which likely explains why his view did not prevail). “Stillness” is the operative word in Douglas’s statement; water is viewed as inert, inanimate— and its Indigenous stewards are rendered invisible. But resistance to this way of thinking is evident in the recent movements of environmental personhood and water sovereignty, movements predominantly propelled by the activism of Indigenous communities.

Environmental personhood refers to the legal granting of personhood, and all concomitant rights, to natural forms, such as forests or rivers. For instance, in New Zealand, the Whanganui River became the first river in the world to be recognized as a legal person. The Maori people view the Whanganui as an ancestral entity, one that is as much a part of the people as the environment. As of 2017, New Zealand law states that the river is owned by itself, and two members of the Maori tribe are appointed to speak on its behalf.

The precedent has been set elsewhere as well for the execution of environmental personhood. From the Vilcabamba River of Ecuador, to the Ganges of India, to Bolivia’s Law of Mother Earth that protects Pachamama, the earth deity, natural forms all over the world are being recognized as living and autonomous. Not just globally, but also domestically: in the United States, there are several recent instances of nature granted personhood, such as the Yukon Tribe of California’s recognition of the Klamath River as a rights-bearing entity.

More locally, the White Earth Band of Objiwe in Minnesota has been seeking justice for Manoomin, a wild rice species that is vital to the lifeways of the Anishinaabe peoples. As a plant that grows in shallow waters, Manoomin’s prosperity is inextricable from the life of waterways. In 2021, Enbridge requested a permit to divert 5 billion gallons of water during construction of its Line 3 tar sands pipeline. Filing on behalf of Manoomin, the White Earth Band served as plaintiff in a suit challenging the Minnesota Department of Natural Resources for issuing the permit. This was the first enforcement of the rights of nature to be filed in tribal court—an action taken because Enbridge’s Line 3 oil pipeline crosses through the very waterways inhabited by Manoomin, thereby violating its rights to environmental health.

In many ways, Line 3 reflects the dire threat Line 5 poses to the Great Lakes. What if, like Manoomin and other natural forms around the globe, the Great Lakes were recognized as legally living? What if they could protect themselves from the destruction imposed by pipeline construction? What if the voice of the Great Lakes were not stilled? We seem to be part of the way there: as of 2019, the Lake Erie Bill of Rights allows citizens to sue on behalf of the lake for pollution or contamination. The fate of the rest of Great Lakes seems to be even more precarious, with the threat of an oil spill seeping closer and closer.

Often obscured by the extractive enterprises that oppose them, Indigenous communities are the backbone of environmental activism; the case of Line 5 is no exception. In 2016, the United Tribes of Michigan passed a resolution stating their strong opposition to the continued operation of pipelines that traverse Indigenous lands, especially projects like Line 5 that would jeopardize the Straits of Mackinac and the Great Lakes at large. Indigenous activists have engaged in other forms of resistance and action as well, such as the The Mother Earth Water Walk, an Anishinaabe led initiative aimed at reframing our relationship to nibi (water) and advocating for the urgent need to protect it. All in addition to organizing rallies and protests, writing letters to President Biden and other political officials, and forging coalitions and alliances with environmental groups to seek justice for the Great Lakes.

Despite these signs of progress in our legal system’s recognition of water sovereignty, significant impediments remain. Our system has no capacity for interpreting or comprehending the spiritual nature of water. The view of water as abstract and spiritual directly counters the law’s proclivity for the concrete and evidentiary. As Whitney Gravelle, President of the Bay Mills Indian Community, puts it, “An environmental review is vital as the Straits of Mackinac are a treaty-protected spiritual and sacred space that provides income, and food resources for Native and non-Native communities alike. Every community requires clean water, air, and soil as well as healthy fish, game, and plant populations to survive. Our ancestors understood this common human need when they negotiated the Treaty of March 28, 1836, with the United States.”

Whereas settler legal systems have taken steps towards granting status and rights to water because it ultimately benefits humans, from a range of Indigenous nations have come powerful arguments about how those rights are inherent to a spirit that is not human, but just as important and sentient. And whereas non-Native (white settler) communities too infrequently concern themselves with the plights of the marginalized, Native activists and scholars have brought into focus how there is a common human need to protect our water. It may be scientifically true to say that we all need water to survive (and we would all be affected in some way were there to be an environmental catastrophe like a pipeline rupture in the Great Lakes), but to say that we would all be affected equally would be a blatantly false statement.

As President Gravelle testifies, “All it takes is one time and one spill to destroy my people and destroy all that we hold dear.” There is an urgency and a gravity to this situation that non-Natives will never understand. Native cultures possess ways of being and knowing that inform relations held with earth and water that have been practiced for millennia. They certainly predate the time a white Supreme Court Justice acknowledged that maybe the environment is not an object to be pillaged by colonialist extractive enterprises. From 50 years ago to today, environmental personhood has been gaining traction as a means of protecting nature. A belief held forever by Indigenous communities is finally becoming legible by those noticing the insidious petroculture that threatens everything. If water is life, pipelines like Line 5 are death. Standing up for our waterways means standing behind the Indigenous leaders that are most intimately involved with the life of water. Perhaps it is time we learned to listen to them. The fate of the Great Lakes depends on it.