Why Legislate Environmental Rights on Prince Edward Island: Part Two

May 12

This blog post is the second installment of a two-part series inspired by the proposed Environmental Bill of Rights that was introduced to Prince Edward Island’s Legislative Assembly on April 8, 2021.

May 12, 2021

One of the purposes of Prince Edward Island’s proposed Environmental Bill of Rights (“Bill 108”), as it was tabled on April 8, 2021, is to confirm the Government of Prince Edward Island’s duty to protect the environment as a “public trust”. Specifically, section 47 of Bill 108 states:

The Government, within its jurisdiction,

(a) is the trustee of the province’s environment; and

(b) shall preserve the province’s environment in accordance with the public trust for future generations.

So, what is a public trust, and what does it mean for the Government of Prince Edward Island to be its trustee?

Generally speaking, a trust is a legal relationship between two people or parties, where an asset or resource is held by a trustee on behalf of a beneficiary who benefits from the use of the asset or resource. The trustee has a duty (in law, it is called a “fiduciary duty”) to look after and manage the asset or resource in the beneficiary’s best interest so that the beneficiary can continue to benefit from the asset or resource. The trustee cannot use, sell, or manage the asset or resource for their own benefit or for the benefit of someone who is not the beneficiary. There can be more than one beneficiary in a trust, and in such cases the trustee has a fiduciary duty to act in all of their best interests.

A public trust takes the concept of the trust relationship between a trustee and beneficiary and applies that concept to the relationship between the government and the public. If it were enacted as passed, Bill 108 would create a public trust in which the Government of Prince Edward Island would be understood to hold, manage, and have a duty to preserve the environment within its jurisdiction for the benefit of the public, and, specifically, for future generations of the public. In other words, the Government of Prince Edward Island would need to make sure that it was acting in the best interests of the public when managing the environment within its jurisdiction.

What Rights Would I Have if the Environment Were Held in Trust by the Government?

In our view, interpretations of the public trust that Bill 108 recognizes would likely be shaped by the public trust doctrine, which states that “certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public’s use."[i] If the Government of Prince Edward Island were to act in a way that failed to preserve the environment within its jurisdiction in the public’s best interest, then the trust relationship could allow members of the public to seek a remedy in court.

The roots of the public trust doctrine can be traced back to Roman times. Historically, the doctrine has recognized that certain environmental resources or features—like air, water, and the sea—are common to humankind and must be preserved for everyone’s use. The focus of the early doctrine was on coastal and ocean waters because they were important for navigation and fishing. The public trust doctrine was later incorporated into the British common law (which draws heavily on Roman precedents), where it was used in a broad sense to recognize a common right to use and access coastal waters.

Canadian courts have not yet applied the public trust doctrine as a common law doctrine and incorporated it into Canada’s common law (the law that emerges through generations of judicial decision-making), but the doctrine has been adopted and developed in the United States, where it is used to protect fishing, navigation, and commerce rights. In an important decision by the United States Supreme Court in 1892 called Illinois Central R R v Illinois, the Court ruled that the Government of Illinois could not legislate (create laws) in a way that would alienate public rights in navigable waters (i.e., give those rights away) in order to serve private interests.[ii] The Court ultimately determined that Lake Michigan—which was the body of water at issue in the case—was held in trust for the public in a way that made it necessary for persons to be able to navigate its waters, conduct commerce, and fish without interference from private parties.[iii]

American courts have continued to develop the public trust doctrine. Although it is applied differently in each state, the doctrine has generally been limited to creating procedural rights rather than substantive rights (see the first blog in this two-part series) for a discussion of the difference). The procedural rights that the doctrine has been used to create are meant to ensure that government decisions about public resources are transparent and open, with the public being informed about those decisions and having opportunities to evaluate and provide input.[iv] The objective is to ensure that the government manages and protects public resources in the public’s best interest.

With all of this in mind, some of the rights stemming from the public trust doctrine that Bill 108 could provide if it were enacted as passed could include procedural rights such as:

the right to be informed by the provincial government about potential decisions being made about the environment within the government’s jurisdiction;
the right to provide comments on and input into those decisions; and,
the right to take the government to court to remedy breaches of such rights.

It is also possible for the public trust doctrine to be applied in ways that impose clear environmental protection obligations on governments and, in doing so, enhance substantive public rights to healthy and ecologically balanced environments. For example, in the American case National Audubon Society v Superior Court of Alpine County, the Supreme Court of California determined that the public trust doctrine created a “duty of the state to protect the people’s common heritage of streams, lakes, marshlands, and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust”.[v] The Court articulated the state’s duty like so:

“The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible”.[vi]

When the public trust doctrine is applied in ways that impose clear environmental protection obligations on governments, those obligations can enhance substantive public rights to healthy and ecologically balanced environments.

Why Is the Public Trust Such an Important Part of the Proposed Environmental Bill of Rights?

As we noted above, Canadian courts have not yet applied the public trust doctrine as a common law doctrine and incorporated it into Canada’s common law.

We are not aware of any existing statutes or regulations on Prince Edward Island which state clearly that the provincial environment is held in trust for the public. The Water Act includes some noteworthy language that aligns with the public trust doctrine: for example, subsections 2(f) and 2(g) in the Purpose and Goals section state that two of the province’s goals are

“that present and future generations shall have sufficient, safe, acceptable, physically accessible and affordable water for domestic purposes”; [and]

“that access to and use of water be sustainable and not harm water quality, water security or the ecosystems that support water quality and water security”.

This language is progressive and very promising, but in and of itself it does not create substantive rights to water or establish clear legal responsibilities to protect the province’s water resources for future generations. Incorporating the public trust doctrine into Prince Edward Island’s law through the proposed Environmental Bill of Rights could help to bridge that gap.

The Supreme Court of Canada opened the door to the common law public trust doctrine in its 2004 decision British Columbia v Canadian Forest Products Ltd, in which Justice Binnie reflected that the concept of public rights to the environment being held in trust by Crown has deep roots in the common law—dating to Roman law and flowing from both British common law and French civil law—with such rights having been applied to running water, rivers, air, the sea, and shorelines.[vii] However, as Canadian courts have grappled with the idea that government holds the environment and its resources in trust for the public, they have come to some dissatisfying results.

Recently, in a case called La Rose v Canada, Canada’s Federal Court heard arguments by a group of Canadian youths who argued that the Government of Canada has public trust obligations and responsibilities when it comes to the management of certain environmental resources. Specifically, the youths wanted the Government of Canada to take action to address climate change.[viii] In the Court’s decision, Justice Manson stated that the “public trust doctrine is a concept that Canadian Courts have consistently failed to recognize”, and he went so far as to state that the doctrine “does not exist in Canadian law”.[ix]

Part of the reason that Canadian courts have declined to recognize the public trust doctrine under the common law is because they fear that doing so would expand the common law significantly, and our legal tradition says that when courts expand the common law, they must only expand it incrementally. Put another way, our courts do not like to dramatically change or alter the way that the common law works, so changes to the common law typically happen slowly, over long periods of time. This means that the best and most efficient way to incorporate the public trust doctrine into Canadian law sooner rather than later is for elected governments to legislate it.

Conclusion

There continue to be attempts by ordinary citizens, communities, and environmental groups to have courts recognize the public trust doctrine as part of Canada’s common law. Recently, applicants applied to the Nova Scotia Supreme Court for judicial review of the Government of Nova Scotia’s decision to remove Owls Head Provincial Park from the protection of the province’s Parks and Protected Areas plan and the corresponding decision to sell the land to a private landowner for development into a golf course. Both decisions were made without notice to the public. The applicants argued, in part, that the provincial government owed the public procedural rights of notice and comment, based on the public trust doctrine. That case has been heard and a decision is pending.

If the proposed Environmental Bill of Rights for Prince Edward Island were enacted as it was tabled, the Bill would create a statutory basis for the application of the public trust doctrine on the Island. Given the state of the common law in Canada—where the public trust doctrine has not yet been implemented and given legal life—environmental rights legislation that positions the provincial government as the trustee of the environment and imposes a legal responsibility to preserve that environment as a public trust is a step in the right direction.

Notably, Prince Edward Island would not be the first Canadian province to take this step: the Yukon Environment Act also characterizes the local environment as a public trust and positions the territorial government as its trustee. This is a significant strength in the Yukon environmental law regime, and, in our view, it would be great to see Prince Edward Island follow suit.

Notes

[i] Cornell University, Legal Information Institute, “Public Trust Doctrine” (2020).

[ii] Illinois Central Railroad Co v Illinois 146 US 387 (1892) at pages 452-53: “[T]he title to the lands under the navigable waters of Lake Michigan […] is a title 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 […]”.

[iii] Ibid at page 452.

[iv] Kootenai Environmental Alliance v Panhandle Yacht Club Inc., 671 P.2d 1085 (Idaho, 1983), at page 149.

[v] National Audubon Society v Superior Court of Alpine County, 189 Cal. Rptr. 346, 658 P.2d.

[vi] Ibid.

[vii] British Columbia v Canadian Forest Products Ltd 2004 SCC 38 at paragraphs 74-75.

[viii] La Rose v Canada, 2020 FC 1008. Note: this was not a full hearing, but rather was a decision of the Federal Court on a motion to strike, meaning it was an intermediate step. The motion to strike succeeded (the judge decided to “throw out” the case) on the basis that there was no cause of action.

[ix] Ibid at paragraph 93.