As U.S. president Donald Trump threatens to annex Canada, many fear that means losing access to natural resources, including the largest fresh water system in the world, the Great Lakes. 

Legislation proposed by some American politicians and activists would serve to safeguard against that.

Last month, the Great Lakes and Other Waters Bill of Rights was introduced in the New York State Assembly, proposing to defend the watersheds’ “unalienable and fundamental rights to exist, persist, flourish, naturally evolve and be restored.” 

If passed and upheld in court, this bill would protect the state’s waters from being “owned, privatized and monetized,” empower municipalities to implement their own laws to protect nature as they see fit, and protect Treaty rights for Indigenous Peoples and tribal nations in the state. 

The proposed legislation, introduced by Assemblyman Patrick Burke, is part of a global “rights of nature” movement, which posits that existing, piecemeal regulations are insufficient to protect our shared ecosystems.

The 1972 federal Clean Water Act, which regulates the amount of pollution permitted in watersheds across the U.S., aimed to make all U.S. waters “fishable and swimmable” in a decade. A 2022 report from the Environmental Integrity Project, a non-profit founded by lawyers who used to work at the U.S. Environmental Protection Agency (EPA), showed that 50 years later, about half of U.S. water is too polluted for swimming, fishing or drinking. 

Tish O’Dell, an organizer with the Community Environmental Legal Defence Fund (CELDF), which helped Burke write his proposed bill, told Ricochet that these numbers show the existing framework for protecting water isn’t working. 

“Are we going to keep going another 50 years operating under the same system until it gets to 100 per cent, or do we say, ‘OK, that was great. We put this system in place 50 years ago. It’s not working. We need to do something different,’” she said. 

In 2008, Ecuador became the first country in the world to enshrine the rights of nature in its constitution. In 2017, New Zealand granted legal personhood to the Whanganui River, and in 2021, the Magpie River in Côte-Nord, Quebec, was granted personhood by the Minganie regional municipality and Innu Council of Ekuanitshit. 

What does this mean for Canada?

Burke’s bill has clear implications for Canada, especially as U.S. President Donald Trump threatens to tear up existing water treaties with Canada and proceeds to gut existing environmental regulations.

New York State shares jurisdiction over Lake Ontario with Ontario, and Lake Erie with Ohio and Ontario. Additionally, Ontario shares jurisdiction over Lake Huron with Michigan, and Lake Superior with Minnesota and Wisconsin. 

According to the Ontario government’s most recent Report on Drinking Water, more than 80 per cent of Ontarians get their drinking water from the Great Lakes. 

Ashley Wallis, who leads Environmental Defence Canada’s plastics, toxics and freshwater campaigns, told Ricochet that her organization is focused on using existing legal mechanisms to protect our shared waters, but is following the rights of nature movement with great interest. 

“A lot of our focus right now is trying to think about what Canada can do to make sure that those protections are not lost entirely, and that the waters continue to be protected through federal policy, but knowing that the states are also concerned about the water and looking for creative ways to protect it is great news at this particular moment in time,” said Wallis. 

There are a series of intersecting provincial, national and binational agreements and legislation aimed at protecting Canada and the U.S.’s shared watersheds, including the 1909 Boundary Waters Treaty, the 1972 Canada-U.S. Great Lakes Water Quality Agreement, the 2008 Great Lakes-St. Lawrence River Basin Water Resources Compact, Ontario’s 2015 Great Lakes Protection Act and the 2021 Canada-Ontario Great Lakes Agreement.

In 2018, Canada and the U.S. entered a bilateral agreement with the U.S. to reduce the level of phosphorus in Lake Erie by 40 per cent below 2008 levels by this year. An October 2024 progress update from the EPA noted that while phosphorus pollution is being reduced, “we are still a long way from meeting the 40 per cent reduction target.”

According to Werner Antweiler, an expert in international trade at the University of British Columbia, these bilateral agreements are the most effective way of protecting Canada and the U.S.’s shared waters. 

“Maintaining the environmental quality of the Great Lakes will take a joint effort on both sides of the border,” he told Ricochet in an email. “New York State is only one riparian jurisdiction.” 

But, Antweiler cautioned, under Article II of the U.S. Constitution, Trump has the “unilateral power to terminate treaties.” 

“Mr. Trump has not made it clear whether he intends to use this authority to terminate any of the agreements that he has referred to, often it appears, in a haphazard manner,” he wrote.

An ‘uphill battle’ in Alberta

While Ontario’s Great Lakes Protection Act doesn’t enshrine inherent rights for the province’s watersheds, a commonality with New York’s proposed Great Lakes and Others Water Bill of Rights is their mutual affirmation of Indigenous Treaty rights. 

In Alberta, Keepers of the Water (KotW), an Indigenous-led environmentalist group, has tried working within existing regulatory systems to uphold the rights of nature in communities downstream from the tar sands. 

Last year, during submissions for Canadian Natural Upgrading’s attempt to renew its five-year water license for its Jackpine tar sands mine, KotW made a submission alongside environmental law firm Ecojustice and the Alberta Wilderness Association to the Alberta Energy Regulator (AER) on behalf of the Athabasca River Basin. 

KotW executive director Jesse Cardinal told Ricochet that they took this approach because the AER only accepts submissions from those who are directly impacted by a project, using a “really narrow” definition. “They make it impossible for the general public to really intervene in the legal processes,” she said. 

Cardinal said that KotW will continue to pursue this approach, noting the “uphill battle” of getting any sort of environmental protections passed in a province dominated by oil and gas interests. 

“We need to look at what that could look like for legislation, because in Alberta, we’re not going to have municipalities support this,” she said.

But Cardinal puts her hope in the First Nations of Treaty 8, particularly the Athabasca Chipewyan First Nation, whose Chief Allan Adam has long been outspoken about the tar sands’ impact on the Athabasca River. 

While Treaty 8 doesn’t outline inherent rights to watersheds, it does recognize signatory First Nations’ right to hunt, trap and fish, which requires a healthy ecosystem. 

A constitutional crisis?

Burke’s bill was inspired by the Lake Erie Bill of Rights, which was passed by residents of Toledo, Ohio, in 2019, but quashed by a federal court judge the following year for being too vague to withstand constitutional scrutiny. 

Kady Valois, a lawyer at the Pacific Legal Foundation based in Orlando, Florida, said this is a common legal objection to rights of nature legislation, “because how is anyone supposed to know what nature really wants?” 

“It makes it hard to enforce and know what is and isn’t allowed under the rules,” she told Ricochet in an email. 

Don Abelson, a political scientist at McMaster University in Hamilton, Ontario, who specializes in American politics, told Ricochet that, if passed, Burke’s bill “could really lay the foundation for a Supreme Court ruling, because it pits states rights against the rights of the federal government.”

Legislation like Burke’s “could create some political obstacles down the road” if the Trump administration proceeds with efforts to renegotiate existing bilateral agreements with Canada, Abelson said. 

This might lead to a “full-blown conflict” in court between the federal government and the New York State Assembly, with environmental NGOs in Canada and the U.S. potentially joining the case as intervenors against Trump. 

Valois noted that in cases where rights of nature legislation has been successful, it’s usually been through constitutional changes, as was the case in Ecuador. 

“Widespread legal change is necessary for rights of nature to work within existing legal systems,” she said.

A ‘cultural shift’

O’Dell of CELDF acknowledges that even if Burke’s bill passes in the state assembly, it could very well face the same fate as the ill-fated Lake Erie Bill of Rights, but whether this iteration of the bill is successful or not is only part of the story. 

Legal changes aside, O’Dell added, there’s a “cultural shift that has to happen.” 

“Our western legal system does everything it can to separate us humans from nature, and so people have this view that nature is property to be owned, exploited, used, whatever, and what we do to nature somehow doesn’t affect us, but it does,” she said. 

“What we do to nature, we do to ourselves, and I think that’s a concept that is so lost on a lot of people in the western legal system and cultural thinking. I hope we can start shifting that.”

Abelson of McMaster University agrees that the Great Lakes and Other Waters Bill of Rights “can still achieve its goal without being formally implemented into law.”

“There are a lot of groups that realize that the likelihood that they succeed legislatively might be small, but if they can make a splash with other groups who are in an even more influential position to affect policy change, then they will have achieved their outcome or their goal,” said Abelson.