Public Trust Doctrine and Climate Litigation in Canada
By Myrna El Fakhry Tuttle
The right to a healthy environment is making headway thanks to case law against governments arguing the public trust doctrine and with changes under Bill S-5 to the Canadian Environmental Protection Act.
Today, climate change is one of the biggest challenges facing us globally. Climate change affects countries, including Canada, where temperatures are rising above the global average.
Climate change can be addressed through litigation, which has been used to challenge governments’ actions in this field. Particularly, we see young people expressing their concerns by bringing cases against governments around the world under the public trust doctrine.
What is the Public Trust Doctrine?
According to the University of Victoria, the public trust doctrine is:
a common law legal principle declaring that there are certain public rights that are so important that the government holds them in trust for the public at large. It is, in essence, a legal mechanism that members of the public can use to require governments to hold and protect vital natural resources (such as navigable waters, drinking water, and fisheries) for the benefit of present and future generations.
Legal Aid Manitoba states the origins of the public trust doctrine go back to Roman law. The Code of Justinian asserts that “air, flowing water, the sea and, consequently, the shores of the sea are common to all.”
The basis of this doctrine is that “some things are considered too important to society to be owned by one person” and that “everyone has the inalienable right to breathe clean air; to drink safe water; to fish and sail, and recreate upon the high seas, territorial seas and navigable waters; as well as to land on the seashores and riverbanks.”
Professor Mary Wood stated:
[The] government is the trustee of our natural assets, including the waters, wildlife, and air. A trust is a fundamental type of ownership whereby one manages property for the benefit of another – similar to someone managing a college account for their niece. We, along with the future generations, are the beneficiaries of this natural endowment. We all hold a common property interest in Nature’s Trust, and we need that trust to be productive in order to sustain human survival and promote human welfare. Our imperiled atmosphere is one of the most crucial assets in our trust.
She added:
With every trust, there is a core duty of protection. The trustee must defend the trust against injury. When we call upon government to safeguard our atmosphere, we are invoking principles that are engrained in sovereignty itself. These principles have been said to ‘exist from the inception of humankind.’ Our government trustees do not have discretion to allow irrevocable damage to the trust.
A key feature of the doctrine is that the public often has a right to sue to enforce it. States can use their parens patriate powers to enforce their trust rights. But the public can use the trust to force their government to respect their own governmental obligations under the doctrine. And that is what makes the doctrine a potential weapon to preserve the climate and the environment.
Taken together, this doctrine allows individuals and public interest organizations to challenge governments about the way they manage public resources. It can be used to protect the environment and tackle climate change.
Public Trust Doctrine in Canada
While courts have not established the public trust doctrine in Canada as the sole cause of action in combatting climate change, it has been discussed in different cases. Below are a few of them.
British Columbia v Canadian Forest Products Ltd (Canfor)
In Canfor, the Supreme Court of Canada (SCC) agreed that mid-13th century English law recognized that “by natural law these are common to all: running water, air, the sea and the shores of the sea …” (at para 75).
The SCC also declared that “[b]y legal convention, ownership of such public rights was vested in the Crown, as too did authority to enforce public rights of use.” The SCC added that since the 13th century, “public rights and jurisdiction over these cannot be separated from the Crown” (at para 76).
The SCC further noted:
[O]ur common future, that of every Canadian community, depends on a healthy environment. … This Court has recognized that “(e)veryone is aware that individually and collectively, we are responsible for preserving the natural environment … environmental protection [has] emerged as a fundamental value in Canadian society” (at para 7, citing 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town)).
The Charter does not explicitly provide for a right to a healthy environment, and the SCC did not say we have that right. In addition, while the SCC discussed the public trust doctrine, it did not rule on whether it applied in Canada. However, this case made it possible for the public trust doctrine to be established in Canada.
La Rose et al v Her Majesty the Queen
In 2019, fifteen children and youths sued the Crown and Attorney General of Canada in the Federal Court. They claimed Canada “continues to cause, contributes to and allows GHG [Green House Gas] emissions that are incompatible with a stable climate” (at para 3). The plaintiffs argued that Canada’s actions have violated their rights under sections 7 and 15 of the Charter of Rights and Freedoms (at para 6), as well as the rights of present and future Canadian children under the public trust doctrine (at para 7). They asked the Court for an order requiring the government to develop and implement a Climate Recovery Plan (at para 9).
The plaintiffs stated:
Some resources are, by their very nature, common or inherently public resources. Where these resources play a fundamental role in the lives of the public, the defendants are under an affirmative trust-like, parens patriae, or fiduciary obligation to preserve and protect their integrity so that the public is not deprived of the benefits they provide to all. This is both a common law obligation and an unwritten constitutional principle (at para 238).
…
The defendants have an obligation to protect the following Public Trust Resources within federal jurisdiction for the benefit of all present and future generations:
a. navigable waters, the foreshores and the territorial sea, including the lands submerged thereunder and the resources located therein;
b. the air, including the atmosphere; and
c. the permafrost (at para 240).
In their reply to the statement of defence, the plaintiffs noted:
The plaintiffs acknowledge, and indeed underscore, that determining whether and to what extent the public trust doctrine has a place in Canadian law raises ‘important,’ ‘novel’ and ‘difficult’ questions (at para 65).
While Canadian courts have yet to recognize the public trust doctrine, the notion that there are public rights in the environment, particularly to assets or property held in common for the public good, is one that has ‘deep roots in the common law’ (at para 66).
The plaintiffs argued Canfor opened the door for Canadian courts to consider the public trust doctrine (at para 67).
In 2020, a Federal Court judge dismissed the lawsuit. They ruled that the Charter claims, under section 7 and section 15, are not justiciable (subject to being determined by a court of law) and disclose no reasonable cause of action (legal claim recognized as entitling one to bring a claim) (at para 102). The judge also ruled that the public trust doctrine, while justiciable, does not disclose a reasonable cause of action (at para 102).
The plaintiffs appealed the decision to the Federal Court of Appeal. The Court has not yet released its decision.
Lho’imggin et al. v Canada
Similar to La Rose, the Indigenous plaintiffs in this case argued the public trust doctrine. They alleged Canada declined to enact legislation addressing the climate change crisis. The Federal Court decided the claim was not justiciable and did not discuss the public trust doctrine (at para 72).
Bill S-5: Strengthening Environmental Protection for a Healthier Canada Act
Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act, originated in the Canadian Senate and received royal assent in June 2023. This Bill amends the Canadian Environmental Protection Act (CEPA), whose preamble now recognizes the “right to a healthy environment.”
According to David R Boyd, “the right to a healthy environment is intended to ensure that everyone has access to clean air, safe water, fertile soil, and nutritious food.”
Highlights of the Bill S-5 changes to CEPA include:
· the Government of Canada now must “protect the right of every individual in Canada to a healthy environment as provided under this Act, subject to any reasonable limits” (see subsection 2(1)(a.2))
· the Government of Canada must exercise its powers in a manner that “protects the environment and human health, including the health of vulnerable populations” (see subsection 2(1)(a)(i))
· the Ministers must “develop an implementation framework to set out how the right to a healthy environment will be considered in the administration of this Act” (see new subsection 5.1(1))
· the government must take specific actions when managing CEPA (see sections 3(2) and 5.1(2))
Commentary
Unlike in Canada, the public trust doctrine is firmly established in the United Sates. Sixteen young people are the plaintiffs in Held v State (2020). They argue the state of Montana’s fossil fuel-based State Energy Policy and the Climate Change Exception in the Montana Environmental Policy Act violate a clause in the Montana constitution that guarantees the right to a clean environment. The plaintiffs also allege the State Energy Policy and the Climate Change Exception violate the public trust doctrine. This lawsuit went to trial in June, 2023. The court has not yet released its decision.
While not legally binding on Canadian courts, Canadian proponents can try to rely on cases like this one to argue that the public trust doctrine should apply in Canada. Such an argument will also be easier given the recent changes to CEPA, which explicitly obliges the government to protect the right of Canadians to a healthy environment.