By the law of nature these things are common to all mankind; the air, running water, the sea, and consequently the shores of the sea.
– Institutes of Justinian (sixth century AD)

ALTERNATIVES JOURNAL: October 2006

IN THE MOVIE Erin Brockovich, Julia Roberts gives toxic torts sex appeal. Similarly, the polluter pays principle is cool, clear and in vogue with Canadian law makers. The public trust doctrine, in contrast, is pretty straight-laced. Nonetheless, it may be the next legal tool to gain fame.

Under the public trust doctrine, certain natural resources are considered the property of the public, who cannot be denied access. The government, as the trustee, is entitled – perhaps obliged – to protect the resources that are held in trust.

Traditionally, water bodies and their use for navigation, fishing and commerce were the natural resources that were the subject matter of the trust. Whether the public trust doctrine can be expanded to protect other, vital natural resources such as our air and atmosphere (and therefore our climate) is an intriguing question with exciting possibilities. If it proves possible, then toxic torts and the polluter pays principle may have a new kissing cousin.

US courts and legislatures have developed a public trust doctrine that has caught the attention of Canadian environmental lawyers and legal scholars. Canadian judges, however, have rarely acknowledged the doctrine, much less applied it. This changed though, when Canada’s Supreme Court recently discussed the doctrine in a case commonly referred to as Canfor.

The laws that protect our environment originate from two main sources. First, governments can pass environmental acts or statutes (statutory law). In the 1970s, for instance, the federal and provincial governments passed a number of environmental laws to address widespread concern about the degradation of our air and water. Second, rules to protect our environment can be developed by judges in resolving disputes between citizens. The principles and rules by which these disputes are resolved become part of our common law.
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Statutory laws may spring up quickly because, for example, of a dramatic increase in scientific knowledge or public awareness. Common law, alternatively, which is based on the principles and rules that decided earlier cases, advances cautiously and incrementally. As a result, it has taken some time for the public trust doctrine to make its way past its traditional roots.

In 1892, the US Supreme Court used the public trust doctrine to invalidate a grant from the State of Illinois to a private railroad. The grant would have transferred ownership of 405 hectares of shoreline and land under the navigable waters of Chicago’s harbour. The court concluded that this resource was held “in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.”

While still dealing with water, California case law includes an example of the public trust doctrine being applied beyond navigable waters to the non-navigable source of those waters. The California Supreme Court decided that a state-authorized private water diversion project from a tributary that fed a navigable water body was invalid because the diversion threatened the navigable water. In other words, the court found the tributary to be the subject of the public trust. This case suggests the doctrine can be expanded to include protection of ecosystems. If a tributary is protected by the doctrine, why not the forests that protect the tributary?

Canadian judges are not bound to follow the wisdom of their American counterparts, but US case law can be considered. This backdrop and the recent favourable comments by Canada’s Supreme Court in Canfor suggest the doctrine may be moving toward centre stage.

Indeed, the Supreme Court’s reference to the public trust doctrine in Canfor is particularly intriguing because this case didn’t deal with water resources, but rather, with a forest (and damage to the forest caused by a fire negligently started by a logging company). This allows for optimism that Canada’s courts may expand the doctrine to other vital resources.

Even if Canadian courts are slow to accept the public trust doctrine, this is not the end of the story. Governments can incorporate the doctrine into new or amended statutory laws. In fact, the Yukon and Northwest Territories have done just that. The Environment Act of the Yukon, passed in 1991, recognizes that the government is a “trustee of the public trust to protect the natural environment from actual or likely impairment.” The NWT law is similar.

We don’t know how quickly Canadian courts will move on using the public trust doctrine, if at all. But the willingness of the Supreme Court to speak favourably of it, particularly in a case where the doctrine was not directly at issue, bodes well. But of one thing we can be assured: If the public trust doctrine one day allows Canadians to take the federal government to court for failing to protect our climate by not achieving its Kyoto targets, it won’t need a glamorous movie star to give it sex appeal.