Dereliction of Duty: Invoking ‘Natural Law’ to Force Our Leaders to do What’s Right

Last year Nestlé Canada Inc., Ontario’s largest purveyor of bottled water, asked the provincial government to amend one of its licenses to draw water from two wells it owns near Guelph. The license required Nestlé to reduce the amount of water it takes from the well in times of drought. The company sought relief from that constraint. The Ontario government was negotiating a compromise settlement when, in April, the environmental law NGO Ecojustice intervened, asking the province’s Environmental Law Tribunal to ensure that the proposed settlement didn’t weaken the license drought restriction.

The case is still before the Tribunal, but however it turns out, the legal reasoning Ecojustice employed has profound implications for Canadians’ efforts to get their federal government to take climate change, and ecological degradation generally, more seriously.

In a nutshell, Ecojustice’s 997-page brief argued that any relaxation of the license limits on water removal during droughts would be “inconsistent with the public trust doctrine” (emphasis in original). That is, by exposing the Guelph area aquifer to depletion, it would betray the province’s duty to protect groundwater as a public asset held “in trust” by the Crown for the common benefit of present and future generations.

The concept may be unfamiliar to most Canadians, but it’s at the centre of a large and expanding body of law in the United States, Britain, other Commonwealth countries and nations as far ranging as the Philippines, South Africa and Brazil. At its heart, it holds that some natural assets are both vital to the wellbeing of every citizen and susceptible to damage from individual actions, and hence transcend private ownership and constitute a “public trust” which the sovereign bears a corresponding “fiduciary duty” to preserve and protect—just as the trustee of a private trust fund bears a duty to preserve its principle for use of its beneficiaries. 

In my new book, Down the Drain: How We Are Failing to Protect Our Water Resources, I argue with my co-author Ralph Pentland that water constitutes just such a public trust, and that the federal government bears a fiduciary duty—long neglected—to protect both water and the ecosystems that generate, collect, clean and regulate its supply. In essence, the same argument that Écojustice is now making in Ontario. 

Well, what is true for water is no less true for climate.

A stable, secure climate is as essential to human survival and prosperity as clean and sufficient water. Indeed, the two are intimately linked. It’s climate that delivers our only water ‘income,’ in the form of rain and snow. It’s also becoming clear that perhaps the most disruptive effect of climate change brought on by rising concentrations of carbon dioxide and other greenhouse gasses in the atmosphere, is the alteration of the water cycle: longer, deeper droughts; more intense rain and snowfall events; and the increasing volatility of formerly stable wet and dry seasons in much of the world. 

In both cases, legions of experts in science and policy have advanced clear, practical suggestions to deal with the challenges of exhausted, polluted waterways and a climate being torqued beyond its established equilibrium by carbon emissions. To the growing alarm of both the experts and informed Canadians, in neither case has the federal Crown shown any willingness to do what is necessary to contain the looming threats to our economy and public health.

Viewed through the lens of the public trust, this is nothing less than a dereliction of fiduciary duty of the worst kind.

Which is what makes the legal argument being advanced in Ontario of such vital significance to all Canadians. In short, if the public trust doctrine can find traction here, it has the potential to force our recalcitrant federal Crown to do what is right to protect our water and the climate that delivers it.

It shouldn’t be such a stretch. The idea of a public trust interest in certain natural assets can be traced to some of the earliest recorded legal codes, and was fully expressed as long ago as the Code of Justinian, which compiled Roman law as it stood in the 6^th century. In it, the right of Roman citizens to access riverbanks and seashores was protected from private encroachment. Similar concepts are found in the Magna Carta, English common law, both French and Spanish civil codes, and in the earliest legal ordinances enforced in the thirteen American colonies. In the year before Confederation, a Canadian court asserted the idea in ruling that a sawmill could not release so much waste into a river that it interfered with public navigation, even if it held a license from the Crown to do so.

That decision, like the one being argued now in Ontario, reflects a key component of the public trust doctrine. Because the right to the prerequisites of human survival embodied in the public trust arise from what legal theorists refer to as “natural law,” rather than any statute or constitutional guarantees, they also precede those written laws. Equally, no government, whatever laws it may pass—or neglects to pass—can abdicate its fiduciary duty to protect the public trust. 

In short, even when governments ignore their responsibility to protect our climate or water resources, the duty to do so does not disappear. And citizens have a right to ask the courts to enforce it.

This notion of an inalienable “affirmative duty” on the part of sovereign states to protect certain natural resources runs like a fresh breeze through a mounting stack of international case law. It’s been applied in California to oblige the state to restore water flow to an endangered lake, in India to force a developer to restore a river relocated to construct a resort, and in the Philippines to require government agencies to rehabilitate the polluted water of Manila Bay. “The right to a balanced and healthful ecology,” the Filipino Supreme Court ruled in the last of these, “need not even be written in the Constitution, for it is assumed… to exist from the inception of mankind.”

As relevant to our Canadian situation, in which our federal government knows what it ought to do to reduce the risk of catastrophic climate change, but has simply refused, the Filipino court added that, “even assuming the absence of a categorical legal [statutory or Constitutional] provision, [government agencies] cannot escape their obligation to future generations” (emphasis added).

And while the original focus of the public trust was water, its scope has also been expanded in other jurisdictions to include everything from the health of ecosystems to the preservation of historical sites and aesthetically pleasing scenery. In the United States, applications currently before several state courts argue persuasively that if a public trust exists in water, then it must also exist in the interest that every human has in a stable climate.

Canadian courts have historically been reluctant to acknowledge any obligation on the part of the Crown. But both theory and case law hold the door open to a more assertive conclusion.

As recently as 2004 the Supreme Court of Canada, in a case involving a British Columbia forest company, mused over “the Crown’s potential liability for inactivity in the face of threats to the environment, [and] the existence… of enforceable fiduciary duties owed to the public by the Crown in that regard” (emphasis in original). The following year, a trial court in Prince Edward Island, upholding a claim against the Minister of Fisheries and Oceans, opined that, “a beneficiary of the public interest ought to be able to claim against the government for a failure to properly protect the public interest” in the environment.

In Sovereignty’s Promise: The State as Fiduciary, a prize-winning legal text published in 2012, McGill scholar Evan Fox-Decent argues, in parallel with the Filipino Supreme Court, that the Canadian Crown’s fiduciary duty to the public exists even when political leaders fail to perform it. No less a duty, he argues, obliges the Crown to act to protect the “atmospheric trust” —that is, the public interest in an undisturbed climate, “capable of supporting independent lives [that] individuals have reason to value.” 

Canada’s written constitution is long on what our provincial and federal Crowns may do; remarkably silent on what they must do. Yet, as unenthusiastic about ‘big government’ as the present Conservative front bench may be, it has embraced some o

f the core duties of national sovereignty: supporting a sound dollar, maintaining civil order, defending Canada’s borders in the name of national security.

Surely Canadians’ natural security, embodied in sufficient clean water and a stable climate, is no less important. The vital relevance of the public trust doctrine is in its potential to force our reluctant leaders to do their duty and protect it.
 

Chris Wood is a Canadian writer and journalist, based currently in Mexico, and the author of several books about climate, sustainability and international law.