Boom or Bust: The Public Trust Doctrine in Canadian Climate Change Litigation.

• Date: 22 March 2024
• Author: Ahmad, Hassan M.
• Published date: 22 March 2024

Introduction

I. A Spectrum of Public Trust Interpretations

A. American Courts

B. Other Jurisdictions

C The Canadian Public Trust Pre-Climate Litigation

D. The La Rose Rejection

II. Boom: Public Trust in the Age of Climate Change

A. The Doctrine's Unique Potential

B. Promoting the Separation of Powers

C The Leviathan in an Existential Crisis

D. Corporate Fiduciaries

III. Bust: The Death of Public Trust?

Conclusion

Introduction

The existential urgency of climate change has entered the courtroom. Over the past few years, Canadian courts have heard the first climate change cases, (1) referred to, at times, in their comparatively longer American history as "atmospheric trust litigation". (2) Predominantly, these claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas (GHG) reduction targets under nationally determined contributions outlined in the Paris Agreement?

Lawyers, activists, and academics have worked together to orchestrate lawsuits to coerce institutional actors to protect the Earths atmosphere before they can no longer effectively do so. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine--what previous authors have referred to as the "law's DNA" because it is "evident in the legal systems of nations throughout the world". (4) In Canadian courts, the doctrine appears to be at a crossroads. On the one hand, it can lay the foundation for robust climate litigation for years to come. On the other hand, it could wither away into irrelevance. (5)

A long-standing Justinian-era property law doctrine that prohibits governments from restricting public access to navigable waters and their underlying sea beds, the public trust doctrine, was recently canvassed but ultimately rejected by the Federal Court of Canada in La Rose v Canada (La Rose). (6) Despite that inauspicious start, there is still potential for the doctrine to flourish in Canadian climate change cases such that plaintiffs can attribute climate effects to the (in)action of Canadian governments and even Canadian-domiciled corporations.

The doctrine's limited and arguably parochial interpretation in Canada has diverged from its recent consideration in the United States. (7) Judicial interpretations there have used constitutional law, common law, and even natural law bases to suggest the doctrine may be sufficiently malleable to apply in climate change litigation that concerns atmospheric degradation, ocean acidification, and the like. (8) Over time, that jurisprudence may integrate itself in the minds of Canadian jurists who may be inclined to expand the doctrine because it is uniquely placed to protect the natural environment for the public at large--a notion that does not fit well with established understandings of, among others, fiduciary duties and public nuisance. In that light, rather than outright rejecting the doctrine, La Rose may be better viewed as an intractable set of facts for which the doctrine could not form a reasonable cause of action.

Part I outlines the public trust doctrine's historical trajectory. It reviews early American cases as well as more recent atmospheric trust cases. It also assesses climate-related cases in other parts of the world (predominantly South Asia) in which the doctrine has been invoked. In doing so, it identifies constitutional law, common law, and natural sovereignty models that other jurisdictions have employed to expand the doctrine from its historical understanding. Finally, that part presents Canadian cases that have considered the doctrine. Although there may have been hope for the doctrine to gain traction after Justice Binme's obiter in British Columbia v Canadian Forest Products Ltd (Canfor), more recent lower court decisions in Burns Bog Conservation Society v Canada (Attorney General) (Burns Bog), La Rose, and Bancroft v Nova Scotia (Minister of Lands and Forestry) (Bancroft) have been unwilling to take a doctrinal step forward such that governments would be required to maintain the air and atmosphere for current and future generations. (9)

Parts II and III canvass the aforementioned paths the Canadian public trust doctrine can take at this pivotal juncture. Part II portends the doctrine's expansive interpretation in climate change litigation. It presents reasons why judges may respond positively to the doctrine and, therefore, decide to expand it rather than radically re-envision existing understandings of, for instance, fiduciary duties and nuisance. For an expansive public trust doctrine that could be applicable in climate-related claims, Canadian courts would construe governments as being responsible for the continued enjoyment of inherently public resources, including the air, atmosphere, forests, and all navigable waters. Pursuant to that understanding, the doctrine would serve as a cause of action for claims brought by individuals against governments as well as for claims brought by governments against arm's length corporations.

Alternatively, even if the doctrine is eventually found to be part of Canadian common law, courts may view it as being a poor fit for climate litigation. Pursuant to that path, discussed in Part III, Canadian courts would freeze the doctrine's interpretation to its Roman and English origins and nineteenth-century interpretations. They would understand it as a governmental fiduciary duty to ensure that inherently public lands and resources are not privatized in a way that makes them inaccessible to the public. In that scenario, institutional actors would not necessarily have to conduct themselves in a manner that protects natural resources for current and future enjoyment. Practically, the death knell of the public trust doctrine in Canada may mean that climate change litigation would revolve around public nuisance and negligence concepts, which are not well-placed to account for the breadth of climate impacts and their diffuse nature that affects the entire Canadian public, not only in the present but also for the foreseeable future.

I. A Spectrum of Public Trust Interpretations

Although the concepts should not be conflated, the public trust doctrine comes out of the historical dichotomy at common law between the jura prwata (private right) and jura publico, (public right). (10) In essence, under the Crown's authority over the jura pubhca, it was prohibited from privatizing land that was viewed as being for public use. The historical scope of this public right was limited to land and waters associated with fishing, navigation, and highways. (11) It is that historical scope with which domestic courts have recently grappled. In climate change litigation, they have been tasked with determining if and how to expand the public trust doctrine from being a prohibition on privatizing lands into a governmental responsibility to maintain a stable environment.

This part reviews the public trust doctrine's trajectory in different parts of the world. Its story outside of Canada may provide fodder for future Canadian courts to move past the view that the doctrine does not exist here or that it is only a rule of title. To date, Canadian courts have yet to follow the guidance put forth by the Supreme Court of New Jersey in Matthews v Bay Head Improvement Association when it stated, "we perceive the public trust doctrine not to be fixed or static, but one to 'be molded and extended to meet changing conditions and needs of the public it was created to benefit'". (12)

A American Courts

The doctrine's historical application by US courts has largely been as a rule of title. (13) Inherited from English common law, original title of submerged lands beneath navigable waters was presumed to be held by the government, unless there was proof of subsequent legal acquisition by a private party. The common law deemed these lands to be held in trust for the public's right of navigation and fishing. In the 1892 decision of Illinois Central Railroad Co v Illinois (Illinois Central), the Supreme Court of the United States affirmed this understanding. (14) There, the Court upheld the State of Illinois' claim to invalidate a previous grant to a private railroad company of lands along the Chicago harbour. The State had granted in fee simple all land that extended out one mile from Lake Michigan's shoreline, including one mile of shoreline through Chicago's central business district.

In Illinois Central, the Court explained that the disputed lands, irrespective of whether they were owned by the state or the railroad company, were distinct from other lands. (15) According to the Court, they were held in trust for the public to "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". (16) Joseph Sax summed up the holding in Illinois Central in the following statement: "What a state may not do ... is to divest itself of authority to govern the whole of an area in which it has responsibility to exercise its police power; to grant almost the entire waterfront of a major city to a private company is, in effect, to abdicate legislative authority over navigation". (17) Although not explicitly stated in that excerpt, the Court in Illinois Central was concerned with government abdicating its responsibility to ensure public access to navigable waters.

Since Illinois Central, the Supreme Court of the United States has confirmed that, absent inter-state or international concerns, each state is endowed with the authority to determine the public trust doctrine's scope. (18) Accordingly, there are now a number of state statutes and constitutions that delineate the government's duty to maintain lands...