Public Trust Doctrine

Public trust doctrine (PTD)

• There are two possible origins for this doctrine,
• Roman law
• Equitable jurisdiction of the Chancery Courts in the England
• The Roman Law idea essentially means that certain natural resources
must be protected by the State for sustainable use of the present and
future generation.
• The English law idea of the public trust requires that public power
must only be exercised in furtherance of public purposes for which
such power was given.
• Magill v Porter [2000]UKHL 67
• Powers conferred on a local authority may be exercised for the public purpose
for which the powers were conferred and not otherwise.
• It follows from the preposition that public powers are conferred as if upon
trust, that those who exercise powers in a manner inconsistent with the
public purpose for which the powers were conferred betray that trust and so
misconduct themselves.
• This interpretation of ‘public purpose’ has a similarity to the doctrine
of public trust. The idea that the public funds are held in trust for the
community and that those persons in public office can be held
personally liable for its misuse or mishandling of it, has been
extended in English public law, to mean that statutory powers
exercised by public authorities is held in trust.
• Statutory powers conferred for public purposes is conferred as it were
upon trust, not absolutely- that is to say, it can validly be used only in
the right and proper way which Parliament when conferring it is
presumed to have intended.
 PTD in Environmental Law
• The Roman Law idea of public trust referred that certain natural
resources must be held in trust for the public.
• Most judicial opinions and legal scholarship on the PTD in
environmental law refers to the institutes of Justinian, where it is
stated that public had unrestricted rights to ‘the air, running water,
the sea and the sea shore’. Those natural resources therefore,
incapable of private ownership and were commonly owned for the
benefit for everyone.
• Section 24 of the South African Constitution of 1996 provides as
follows,
• Everyone has the right to an environment that is not harmful to their health
or wellbeing, and to have the environment protected, for the benefit of
present and future generations, through reasonable legislative and other
measures that prevent pollution and ecological degradation; promote
conservation; and secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and social
development.
• Section 3 of the National Water Act 36 of 1998 of South Africa titled,
“public trusteeship of nation’s water resources” provides,
• 3(1) as the public trustee of the nation’s water resources the National
Government, acting through the minister, must ensure that water is
protected, used developed, conserved, managed and controlled in a
sustainable and equitable manner for the benefit of all persons and in
accordance with its constitutional mandate.
• (2) Without limiting subsection (1)the minister is ultimately responsible to
ensure that water is allocated equitably and used beneficially in the public
interest, while promoting environmental values.
• (3) the National Government, acting through the minister, has the power to
regulate the use, flow and control of all water in the Republic.
• Illinois Central Railroad v Illinois is considered a landmark case of the
application of this doctrine in American Law.
• In this case, the Supreme Court of the USA held that the state of
Illinois cannot abandon its authority over navigation in the waters of
Lake Michigan, by a grant of submerged lands to the Illinois Central
Railroad.
• The sate can no more abdicate its trust over property in which the whole
people are interested, like navigable water and soils under them, so as to
leave them entirely under the use and control of private parties, than it can
abdicate its police powers in the administration of the Government, the use
such powers may for a limited period be delegated to a municipality or other
body, but there always remains with the state the right to revoke those
powers and exercise them in a more direct manner, and one more
conformable to its wishes. So with trust connected with public property, or a
property of a special character, like lands under navigable waters; they cannot
be placed entirely beyond the directions and control of the state.
• In applying the doctrine of public trust within own jurisdiction. It
should be meet three criteria,
• The property subject to the trust must not only be used for a public purpose,
but it must be held available for use by the general public.
• The property may not be sold, even for a fair cash equivalent
• The property must be maintained for particular types of use.

Joseph Sax, the Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention, Michigan Law Review, 1970, 477
• The PTD has been held to be part of the law of India in the case of
Mehta v Kamal Nath 1997 1 SCC 388.
• In this case, several significant observations were made by the court
with regard to the doctrine including,
• The doctrine applied only in natural resources that are not capable of private
ownership.
• Identified the types of natural resources that fall within the ambit of the
doctrine.
 •
Our legal system – based on English common law – includes the public trust
doctrine as part of its jurisprudence. The state is the trustee of all natural
resources which are by nature meant for public use and enjoyment. Public at
large is the beneficiary of the sea-shore, running waters, airs, forests and
ecologically fragile lands. The State as the trustee is under a legal duty to
protects the natural resources. These resources meant for public use cannot
be converted into private ownership.
Mehta v Kamal Nath, para 34
• Several other cases in India are also followed this judicial approach.
• Tirupathi v State of Andra Pradesh and Others. (2006) AIR SC 1350
• Karnataka Industrial Areas Development Board v C Kenchappa and Others
(2006) AIR SC 2546
• Constitutional recognition for the doctrine in India.
• Article 48 A of the Constitution of India mandates that the State shall
endeavour to protect and improve the environment to safeguard the forest
and wildlife of the country.
• Article 51 A of the Constitution of India enjoins that it shall be the duty of
every citizen of India to protect and improve national environment, including
forest, lakes, rivers, wild life and to have compassion to living creatures.
• These two articles are not only fundamental in the governance of the country but also it
shall be the duty of the State to apply these principles in making laws and further these
two articles are to be kept in mind in understanding the scope and purport of the
fundamental rights guaranteed by the Constitution.
 International Environmental Law and PTD
• Justice Weeramanthri in his separate opinion given in the decided
case of Hungary v Slovakia elaborated the relationship between
sustainable development and state responsibility over the natural
resources.
• Among those which may be extracted from the systems already referred to
are such far-reaching principles as the principle of trusteeship of earth
resources, the principle of intergenerational rights, and the principle that
development and environmental conservation must go hand in hand. Land is
to be respected as having the vitality of its own and being integrally linked to
the welfare of the community. When it is used by the human every
opportunity should be afforded to it to replenish itself. There is a duty lying
upon all members of the community to preserve the integrity and purity of
the environment.
 Judicial Development of PTD in Sri Lanka
• The court generally make reference to Articles 3, 4 and 12(1) of the
constitution when relying on the PTD.
• PTD is a relatively new concept to the Sri Lankan judiciary.
• Sri Lankan Supreme Court has been used this doctrine in responding
to either abuse of discretionally public powers, exploitation of natural
and national resources for private benefit or in response to action
that are considered to be in violation of the ‘sovereignty of the
people’.
 Trusteeship of natural resources
• Bulankulama v Secy, Ministry of Industrial Development,
• The constitution declares that sovereignty is in the people and is inalienable.
Being a representative democracy, the powers of the people are exercised
through persons who are for the time being entrusted with certain functions.
• Watte Gedara Wijebanda v Conservator General of Forest and Others
(S.C. Application No. 118/2004) –Justice Shirani Thilakawardena
• The constitution in Article 27 (14) of the directive principles of state policy
enjoins the state to protect, preserve and improve the environment. Article
28 refers to the fundamental duty upon every person in Sri Lanka to protect
nature and conserve its riches.”
• ENVIRONMENTAL FOUNDATION LTD vs. MAHAWELI AUTHORITY OF
SRI LANKA [2010 1 SLR 1 at p.19], Ratnayake J observed
• “Although it is expressly declared in the Constitution that the Directive
principles and fundamental duties 'do not confer or impose legal rights or
obligations and are not enforceable in any Court of Tribunal' Courts have
linked the Directive principles to the public trust doctrine and have stated
that these principles should guide state functionaries in the excise of their
powers.”
 Trusteeship of national resources
• Environmental Foundation Ltd v Urban Development Authority (Galle
Face Green Case) (2005)
• The Galle Face Green should be maintained as a public utility in continuance
of the dedication made by Sir Henry Ward and necessary resources for this
purpose should be made available by the Government of Sri Lanka, being the
successor to the Colonial Governor who made the dedication.
 Principle recognized in PTD
• Public benefit
• Public interest
• Shared responsibility
 Weakness of PTD

• Even though PTD rooted in the sovereignty of the people, but broad
discretion vest in the judiciary when applying the doctrine.
Public Interest Litigation
Introduction
• Public Interest Litigation means prosecution of the public interest. It is
prosecution in an official courtroom, not by the bothered party but
rather by the court itself or by some other private gathering. PIL, in
simple word, implies, prosecution filed in a courtroom, for the
protection of "Public Interest", for example, Pollution, Terrorism,
Road Safety, Constructional hazards and so on.
CONT’
• The term "PIL“ originated in US in the mid1980s. Since the 19"
century, various movements in that country had contributed to public
interest law, which was part of legal aid movement. The first legal aid
office was built up in New York in 1876. In the 1960s the PIL
movement began to receive financial support from the office of
Economic Opportunity.
• This supported lawyers and public spirited persons to take up cases of
the underprivileged and fight against dangers to environment and
public health and misuse of consumers and the weaker sections.
CONT’
• The Court has to innovate new methods and strategies to provide
access to justice to large masses of people who are denied basic
human rights, to whom freedom and liberty have no meaning.
Justice PN Bhagwati (SP Gupta vs Union of India, 1981)
 Who Can File a PIL
• In normal cases, it is seen that abused gathering i.e. the victim, who is
influenced needs to record his case in an official courtroom.
• That individual ought to have an enthusiasm for the debate. In any
case, in documenting PIL there is no such condition. Any individual
can record a PIL. The main condition being that the same must be
documented Public Interest.
 Merits of PIL
• In PIL careful nationals of the nation can locate a modest legitimate
cure on the grounds that there is just an nominal settled court
expense associated with this.
• Further, through the supposed PIL, the prosecutors can concentrate
consideration on and accomplish comes about relating to bigger open
issues, particularly in the fields of human rights, consumer welfare
and condition.
 Demerits of PIL
• The certified cause and instances of public interest have in retreated
to the foundation and unreliable PIL activists everywhere throughout
the nation have begun to play a major yet not a productive part in the
field of case.
• The framers of Constitution did not join a strict principle of partition
of forces yet imagined an arrangement of governing rules.
Arrangement making and usage of approach are routinely seeing as
the select area of the official and the legislature.
CONT’
• The adaptability of technique that is a character of PIL has offered to
another arrangement of issues. It gives a chance to inverse gatherings
to learn the exact claim and react particular issues.
• The believability of PIL process is presently unfavorably influenced by
the feedback that the legal is exceeding the limits and that it can't
administer the compelling execution of its requests. It has likewise
been progressively felt that PIL is being abused by the general
population fomenting for private grievance in the get of public
interest and looking for reputation as opposed to upholding public
reason
 PIL & International Environmental Law
• Rio Declaration Principle 10
• Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each
individual shall have appropriate access to information concerning
the environment that is held by public authorities, including
information on hazardous materials and activities in their
communities, and the opportunity to participate in decision-making
processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access
to judicial and administrative proceedings, including redress and
remedy, shall be provided.
CONT’
• Aarhus Convention – Convention on Access to Information, Public
Participation in Decision Making and Access to Justice in
Environmental Matters
• Elaborated Principle 10 of the Rio Declaration
CONT’
• “Although regional in scope, the significance of the Aarhus
Convention is Global. It is by far the most impressive elaboration of
principle 10 of the Rio Declaration, which stresses the need of
citizens’ participation in environmental issues and for access to
information on the environment held by public authorities. As such it
is the most ambitious venture in the area of ‘environmental
democracy’ so far undertaken under the auspices of the UN.”
www.unece.org/env/pp
• Aarhus Convention consist of three pillars.
• The first pillar gives the public the right of access to environmental
information – establishes rules and requirements for government to disclose
information about the state of the environment, and the factors, policies and
activities that affect it.
• The second pillar gives the public the right to participate in environmental
decision making process – requires the arrangements to be made by public
authorities to enable citizens and environmental organizations to comment
on, such as proposals for projects affecting the environment and for these
comments be taken into account in decision making.
• The third pillar ensure access to justice for the public environmental matters –
deals with the right of the public and public interest groups to seek a judicial
remedy for non-compliance by governments and corporations with legal
obligations established by the first two pillars.
PIL in Sri Lanka
• Article 27(14) of the Constitution
• Bulankulama Case
• GM Food case – CA Writ Application 1380/2005
• Visual Pollution Case – CA Writ Application 135/2009
• Lead in Paint Case – SC FR 64/2011
• Chunakkam Case
• Wilpattu Case
 Thank You
Next: Public Interest Litigation