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Decision Making: Public Trust Doctrine

DECISION MAKING: THE PUBLIC TRUST DOCTRINE

What is the Public Trust Doctrine?

The public trust doctrine provides that certain natural resources are the common property of all citizens and must be preserved and protected by the government. 1 According to the doctrine, the government has a fiduciary duty to protect the public’s assets from damage or destruction. 2 It is a complicated concept because it does not fit neatly into the areas of tort or contract and instead more closely resembles a fiduciary duty. 3 However, it is a helpful mechanism “to address environmental challenges that may otherwise not be justiciable by individuals or public interest groups.” 4

The public trust doctrine supports the idea that the government has a responsibility to protect the environment, both to protect public natural assets and to prevent eco-centric harm. 5  As such,  it may be another way to get the rights of nature before a court or administrative body. If the government has a duty under the public trust doctrine to protect the environment on behalf of rightsholders in society (including nature) it could be enforced in a judicial setting.

The American Public Trust Doctrine

The public trust doctrine has been confirmed in American law and was first acknowledged in the courts in the 1842 decision of Martin v Waddell. 6 In this decision, after land was transferred from the British Crown to American landowners, the Court found that the “shores and rivers and bays and arms of the sea and land under them” remained as a public trust for the benefit of the whole community. 7 The doctrine has been revisited many times since by American courts particularly in relation to state law. In fact, the state of Hawaii has actually incorporated the public trust doctrine into its state constitution. 8

Recently, the case of Juliana v US raised the idea of a federal public trust doctrine. 9 This lawsuit alleged that the United States government had violated the constitutional rights of the plaintiffs and the public trust doctrine through its failure to effectively and meaningfully address climate change. However, in 2020 the Ninth Circuit Court of Appeal found that the federal courts were not the proper avenue to provide the youth with a remedy for their climate change injuries. 10

The Public Trust Doctrine in Canada

Currently, Canada does not have an established legal framework for the public trust doctrine. However, there is one Supreme Court of Canada decision in which the highest court in the land acknowledged the possibility of applying the public trust doctrine in Canada in claims to protect the environment – the decision of British Columbia v Canadian Forest Products Ltd. known as “Canfor.” 11 In this decision, the Supreme Court of Canada noted that “[t]he notion that there are public rights in the environment that reside in the Crown has deep roots in the common law.” 12 However, this discussion was in obiter and they did not rule on the matter, which means that it is not law.

Despite this lack of full recognition, most Canadian courts have acknowledged that the public trust doctrine is a justiciable issue. This means that while the public trust doctrine would theoretically be an issue that courts could rule on they have not yet done so. We consider Canadian caselaw that has considered the public trust doctrine next. This includes:

Green v Ontario 13

In this decision, the plaintiff Mr. Green sought an injunction against the Province of Ontario to stop further excavation of a sand dune bordering the Sandbanks Provincial Park. He argued that according to section 2 of the Provincial Parks Act, “all provincial parks are dedicated to the people of the Province of Ontario … shall be maintained for the benefit of future generations.” 14 He reasons that on the basis of this section, the Act imposes a trust on the province with regard to the provincial park, requiring that it maintain the park as described in section 2 of the Act. 15

The Court; however, dismissed the claim finding that the language of the Act was too uncertain as to create a public trust requiring the imposition of a public trust doctrine to comply with classical trust principles. 16

R v Mann 17

In this decision, the plaintiffs were residents of British Columbia who worked as commercial fishermen. They argued that the province of British Columbia, the Minister of Fisheries and Oceans, and the Fraser River Area Manager “have adopted a policy of preferring claims to use and enjoyment of the Fraser River Sockeye Salmon Fishery advanced by the holders of Indian food fishing licences over their own claims and those of other commercial fishermen.” 18They claim that this is a breach of the public trust held by the government on behalf of all Canadian fisheries.

Because this was a motion to strike, the Court did not rule on the merits although they found that the public trust claim was a justiciable issue.

La Rose v Canada 19

In this case, the plaintiffs La Rose et al. allege that the actions of the Canadian government contribute to ongoing GHG emissions which interfere with their rights under the Charter. They further allege that the defendants “have failed to discharge their public trust obligations with respect to identified public resources, arguing a breach of obligations they claim fall under the ‘public trust doctrine.’” 20 In response, the Canadian government brought a motion to strike the matter. While the Court found that the Charter claims were not justiciable, they held that “the question in relation to the public trust doctrine is a justiciable issue.” 21

However, the Court concluded that the “public trust doctrine, as pleaded by the Plaintiffs, is not supported in Canadian law.” 22 Notably, the Federal Court highlighted the Supreme Court of Canada decision in Canfor arguing that the discussion of the public trust doctrine in that case suggested a potential opening for the crown to pursue a tort action rather than an individual to pursue action against the Crown. 23 This decision was a step back in the recognition of an expansive public trust doctrine in Canada.

Burns Bog Conservation Society v Canada 24

In Burns Bog Conservation Society v Canada, the Federal Court considered American jurisprudence limiting the use of the public trust doctrine to lands owned by the state in coming to their decision.  In Burns, the Court found that the “Defendants do not own Burns Bog, so they cannot owe a trust obligation even if a public trust can exist under Canadian law.” 25 This analysis limits the potential use of the doctrine to instances where the government is the owner of said lands even if it were incorporated into Canadian law.  26

  • The public trust doctrine provides that certain natural resources are the common property of all citizens and must be preserved and protected by the government.

Footnotes

  1. Monique Evans, “Parens Patriae and Public Trust: Litigating Environmental Harm Per Se” (2016) 12-1 McGill J of Sustainable Development L 1 at 14
  2. Monique Evans, “Parens Patriae and Public Trust: Litigating Environmental Harm Per Se” (2016) 12-1 McGill J of Sustainable Development L 1 at 16
  3. David Grinlinton, “The Continuing Relevance of Common Law Property Rights and Remedies in Addressing Environmental Challenges” (March 2017) 62:3 McGill L J 633 at 675
  4. David Grinlinton, “The Continuing Relevance of Common Law Property Rights and Remedies in Addressing Environmental Challenges” (March 2017) 62:3 McGill L J 633 at 675
  5. Monique Evans, “Parens Patriae and Public Trust: Litigating Environmental Harm Per Se” (2016) 12-1 McGill J of Sustainable Development L 1 at 16
  6. Martin v Waddell, 41 US 16 Pet 367 (1842)
  7. Martin v Waddell, 41 US 16 Pet 367 (1842) at 40
  8. The Constitution of the State of Hawaii, Art XI, § 1 online: https://lrb.hawaii.gov/constitution/#articlexi
  9. Juliana v US, DC 6:15-cv-01517-AA, No. 18-36082 (9th Cir. 2020)
  10. Juliana v US, DC 6:15-cv-01517-AA, No. 18-36082 (9th Cir. 2020)
  11. Monique Evans, “Parens Patriae and Public Trust: Litigating Environmental Harm Per Se” (2016) 12-1 McGill J of Sustainable Development L 1 at 7
  12. British Columbia v Canadian Forest Products Ltd., 2004 SCC 38 at para 74
  13. Green v Ontario, [1973] 2 OR 396
  14. Green v Ontario, [1973] 2 OR 396
  15. Green v Ontario, [1973] 2 OR 396
  16. Green v Ontario, [1973] 2 OR 396; Monique Evans, “Parens Patriae and Public Trust: Litigating Environmental Harm Per Se” (2016) 12-1 McGill J of Sustainable Development L 1 at 18-19.
  17. R v Mann, 1990 CanLii 603
  18. R v Mann, 1990 CanLii 603
  19. La Rose v Canada, 2020 FC 1008
  20. La Rose v Canada, 2020 FC 1008 at para 7
  21. La Rose v Canada, 2020 FC 1008 at para 26
  22. La Rose v Canada, 2020 FC 1008 at para 59
  23. La Rose v Canada, 2020 FC 1008 at para 89
  24. Burns Bog Conservation Society v Canada (Attorney General), 2012 FC 1024
  25. Burns Bog Conservation Society v Canada,  2012 FC 1024 at para 40
  26. Burns Bog Conservation Society v Canada (Attorney General), 2012 FC 1024 at paras 106-112