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Coming out of hibernation : the Canadian public trust doctrine Smallwood, Kate Penelope 1993

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COMING OUT OF HIBERNATION :THE CANADIAN PUBLIC TRUST DOCTRINEbyKATE PENELOPE SMALLWOODB.A., The University of Melbourne, 1987LL.B. (Hons.), The University of Melbourne, 1987A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF LAWWe accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIASeptember, 1993©Kate Penelope SmallwoodIn presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature) ofThe University of British ColumbiaVancouver, CanadaDate  e se/) iciwItDE-6 (2/88)11ABSTRACTThis thesis appears to be the first academic recognition of the public trustdoctrine at Canadian common law. Surprisingly, despite the explosion ofthe doctrine in the United States, there has been little consideration of thedoctrine by Canadian courts and only one Canadian article on the subject.To date, Canadian interest in the doctrine has been primarily statutory.In essence, the public trust doctrine means that despite its ownership ofnatural resources, the government holds certain resources, such asnavigable waters, on trust or in a fiduciary capacity for the public. Theorigins of the doctrine are somewhat vague, but can be traced back toRoman law and the English public rights of navigation and fishing. Areview of these public rights reveals that at both law and economics,certain resources are "special" and inherently public in nature.A long and dusty trail through Canadian law reports reveals that Canadiancourts have recognized a public trust with respect to navigation andfishing as well as highways. Although the public trust concerningnavigation and fishing has lain dormant since the late nineteenth century,the distinctive features of the public rights of navigation and fishing whichled both American and Canadian courts to declare a public trust, havebeen mirrored in Canadian law. Coupled with the initial Canadianiiirecognition of the public trust, the foundations therefore exist for amodern common law revival of the public trust doctrine in Canada. Thelikely consequences of recognition of the public trust at Canadian commonlaw are : (1) the recognition of a substantive right, and therefore legalstanding, in members of the public to vindicate public trust interests; (2)the imposition of an affirmative fiduciary obligation on government withrespect to trust resources; (3) the imposition of an administrative processon government with respect to supervision and disposition of public trustresources; (4) restrictions on alienation of trust resources, in particular therestriction that legislation is required to modify or extinguish public trustresources and, (5) in an environmental context, recognition of theimportance of the natural environment and the special and inter-relatednature of trust resources.ivTABLE OF CONTENTS AbstractTable of Contents^ ivAcknowledgement viiINTRODUCTION^ 1CHAPTER ONE : ROMAN AND COMMON LAW ORIGINS OF THE PUBLICTRUSTIntroduction^ 9Part I - Roman Law and Early English Common Law^ 10Part II- English Common Law^ 19Introduction 19Navigation and Fishing 20Navigable Waters^ 21Public Rights Paramount 23Grantee Took Subject to Public Rights^23More Than A Right Of Access - Incidental RightsIncluded^ 24Legislation Required To Extinguish Public Rights^26Role And Duties Of The Crown^ 26The Public Rights As A Public Trust 27Highways^ 30Role Of The Crown^ 31Restrictions On Extinguishment^ 32Coast Protection 33Part III -Economic Treatment of Common Property 37Conclusion^ 41CHAPTER TWO : THE DEVELOPMENT OF THE PUBLIC TRUST DOCTRINEIN THE UNITED STATESIntroduction^ 42Part I -Reception of the Public Trust Doctrine Into American Law^43Part II-Waters : A Question of Navigability^ 46VPart III -Highways^ 55Part IV -Parks and Wildlife : To Be Or Not To Be Within The PublicTrust^ 60Parks 61Wildlife^ 68Conclusion^ 75CHAPTER THREE : DEVELOPMENT OF THE PUBLIC TRUST DOCTRINE ATCANADIAN COMMON LAWIntroduction^ 77Part I -Navigation And Fishing^ 79Navigable Waters 84Legislation Required To Extinguish The Public Rights^87Grantee Takes Subject To Public Rights^88Incidental Rights^ 89Role And Duties Of The Crown 90The Public Rights As Either A Right Of Way Or A PropertyRight^ 90Part II -Highways 93Restrictions On Extinguishment^ 100Conclusion^ 103CHAPTER FOUR : THE CONSEQUENCES OF RECOGNITION OF THE PUBLICTRUST DOCTRINEIntroduction^ 104Part I -The Nature Of The Public Trust^ 106Introduction^ 106The Public Trust As A Trust 107The Public Trust As A Fiduciary Obligation^119Part II -The Consequences Of Recognition Of The Public TrustDoctrine^ 125Introduction^ 125The Public Trust As A Substantive Right^128The Public Trust As An Administrative Process^134viRestrictions On Extinguishment^ 144Legislation Required to Modify the Public Trust^144Public Purpose and Substantial Impairment^146Grantee Takes Subject to the Public Trust 149Prohibition Against Alienation of Entire Trust Resource 152Prohibition Against Abdication by State of itsRole as Trustee^ 153The Public Trust As A Means Of Enhancing The SpecialNature Of Trust Property^ 154Conclusion^ 158CONCLUSION 160BIBLIOGRAPHY^ 161viiACKNOWLEDGEMENTMy thanks to my supervisors, Dr. Andrew Thompson and KarinMickelson for their continued patience, encouragement and advice, toGreg McDade and Stewart Elgie from the Sierra Legal Defence Fund(Vancouver) for introducing me to my thesis topic and to Stewart forsuggestions and encouragement, to Professor Michael Crommelin, Dean,Faculty of Law, University of Melbourne for introducing me to Dr.Thompson and suggesting a Master of Laws at UBC, to my family forsupport from afar and finally, to my friends and fellow graduate studentswho ensured that thesis notwithstanding I still had a truly wonderful year.Thank you.We give thanks for places of simplicity and peace. Let us find such a placewithin ourselves. We give thanks for places of refuge and beauty. Let usfind such a place within ourselves. We give thanks for places of nature'struth and freedom, of joy, inspiration and renewal, places where allcreatures may find acceptance and belonging. Let us search for theseplaces : in the world, in ourselves and in others. Let us restore them. Letus strengthen and protect them and let us create them.May we mend this outer world according to the truth of our inner life andmay our souls be shaped and nourished by nature's eternal wisdom.Michael Leunig, A Common Prayer(Collins Dove : Victoria, Australia, 1991)2INTRODUCTIONAs an Australian resident in Canada, I have been continually struck by the diversity andbeauty of its wild places and wildlife. The images continue to astound - the slow gracefulflight of the bald eagle in the swirling fog in the Plumper Islands, the incredible depthof blue in the ice caves in the Selkirks, the seemingly endless white landscape of theWapta Icefields and the massive hanging glaciers, the sight of a family of otters,mischievously playing in the ocean in the dusk off Blackberry Point in the Gulf Islands.The aboriginal influences are strong here too. I particularly remember the native burialsite in the Carey group of islands - the carved cedar burial boxes greening with age andthe decaying hamatsa headdresses - so peaceful a resting place, fanned by the sea breezesoff the tiny strait. The detail of the carved wolf on the totem pole at Mamalilacullaslowly being obscured by vegetation and sea weather - the pole left lying where it fellto return to the soil from whence the tree came.This thesis is written not just from the depths of a law library, but from travels inCanadian wilderness. It is driven by the belief that natural resources such as water,oceans, parks, wilderness and wildlife are essential to humanity, as well as havingintrinsic value which cannot be quantified. While the needs of modern society mayrequire some destruction or alienation of these resources, such action should not be3undertaken lightly and only after due and public consideration of the impacts of theproposed action on the environment. This belief has been reinforced by a year's studyof the public trust doctrine.The public trust is something of an enigma. Academics and judges have confidentlyasserted that the public trust is a mere right of way, an easement, a public property right,a constitutional limitation, an affirmative fiduciary obligation or, a trust. In essencehowever, the public trust means that despite its ownership of natural resources, thegovernment holds certain natural resources on trust, or in a fiduciary capacity for thepublic.Although the origins of the public trust are somewhat vague, the public trust can betraced to the public rights with respect to navigation, fishing, the seashore and highways.While influenced by Roman law principles regarding the public or common nature ofcertain resources such as the air, running water, the sea and the seashore, the publicrights of navigation and fishing recognized at English common law laid the foundationsfor the public trust doctrine. Although the public trust has been extended in America toparks, wildlife and highways, the public trust is generally viewed (at least in its originalform) as an amphibious doctrine, applying to navigable waters, tidelands, the foreshoreand the lands underlying navigable waters.This thesis began as an attempt to illuminate the murky depths of the public trust, with4a view to ascertaining if a public trust existed at Canadian law. To date, Canadianinterest in the public trust has been primarily statutory. The public trust doctrine has beenenshrined in the Yukon Environment Act' and the Northwest Territories EnvironmentalRights Act 2 and is being considered in British Columbia and Saskatchewan.'Surprisingly, however, despite the explosion of the doctrine in America, there has beenlittle consideration of the doctrine by Canadian academics and Canadian courts. The solearticle on the public trust doctrine at Canadian law recognizes the public rights ofnavigation and fishing at Canadian common law, but does not identify a specific trustwith respect to these rights and makes no mention of highways.' This paper is therefore,probably the first academic recognition of a public trust at Canadian common law.R.S.W.T. 1988, c. 83 (Supp.).2 S.N.W.T. 1990, c. 28. It must be remembered however, that the Canadian federalgovernment owns the public lands in the Yukon and the Northwest Territories andtherefore the legal effect of this legislation is somewhat questionable. On title to publiclands in the Territories, see generally : P.W. Hogg, Constitutional Law of Canada, 3rded., (Toronto, Canada : Thomson Canada Ltd, 1992) at para 29.4 (c) and c. 28.3 An Environmental Protection Act for B. C. - A Public Discussion Paper, (ConfidentialDraft), December 1992; First Report of the Standing Committee on the Environment :Report of Environmental Rights and Responsibilities, April 1993. Although it wasrecommended initially that the public trust doctrine be included in Ontario's proposedEnvironmental Bill of Rights (see M. Rankin, An Environmental Bill of Rights forOntario : Reflections and Recommendations, A Discussion Paper at 35-38), it appearsthat the doctrine will not be included (Ministry of the Environment, Report of the TaskForce on the Ontario Environmental Bill of Rights, July 1992 and Report of the TaskForce, Supplementary Recommendations, December 1992.4 C. Hunt, "The Public Trust Doctrine in Canada" in J. Swaigen, ed. Environmental Rightsin Canada (Toronto : Butterworths, 1981) at 185.5A long and dusty trail through early English and Canadian law reports reveals thatCanadian common law has recognized a public trust with respect to navigation andfishing, as well as a trust over highways. However, the public trust concerningnavigation and fishing has largely lain dormant since the late nineteenth century.Interestingly, the strongest modern common law expression of a public trust in Canadais that with respect to highways.Chapter One explores the Roman and English common law origins of the public trustdoctrine. A consistent theme throughout this Chapter is that public rights arise in certainresources such as the sea, the sea-shore, tidal waters and highways because theseresources are ill-suited for private ownership; they are inherently public and "special"in nature. Although there is no resounding declaration of a public trust by English courts,the English common law recognition of public rights in navigable waters, the sea-shoreand highways and the corresponding duties of care and protection placed on the Crownlaid the foundations for the public trust doctrine. It is clear from the cases that Englishcourts regarded these resources as "special" - despite Crown ownership of theseresources, the public rights are paramount to those of the Crown, any grantee of theCrown takes subject to the public rights, incidental rights are protected also and there aresignificant restrictions on extinguishment. It was undoubtedly these distinctive featuresof the public rights concerning navigation, fishing and highways, together with thedivision of title over these resources between the Crown's title or "jus publicum" and thepublic's title or "jus privatum" , which led American and Canadian courts to declare so6confidently a public trust with respect to navigation, fishing and highways.The public rights of navigation and fishing, and the public rights with respect tohighways washed up on American shores as public trust rights. Chapter Two considersthe development of the public trust doctrine in America. The history of the Americanpublic trust is one of dramatic expansion and remarkable adaptability to changingperceptions of the public interest. The public trust over navigable waters and associatedlands has expanded from the traditional trust purposes of commerce, navigation andfishing to embrace recreational and ecological values and preservation of trust resourcesin their natural state. The trust has expanded also to embrace, somewhat inconsistently,other resources such as parks and wildlife.Chapter Three considers the development of the public trust doctrine at Canadiancommon law. As mentioned earlier, the Canadian public trust with respect to navigationand fishing has been in hibernation since the late nineteenth century. However, thedistinctive features of the English public rights of navigation and fishing which led bothAmerican and Canadian courts to declare a public trust have been mirrored in theCanadian public rights of navigation and fishing. Coupled with the initial recognition ofthe public trust by Canadian courts, the foundations therefore exist for a modern commonlaw revival of the public trust doctrine in Canada.Chapter Four explores the consequences of recognition of the public trust doctrine at7Canadian common law. An attempt is made to define the nature of the doctrine, withparticular consideration given to the public trust as both a trust and, more broadly, as afiduciary obligation. The conclusion reached is that at the very least, the public trustimposes a broad fiduciary obligation on government.As there are few Canadian cases on the public trust doctrine aside from those concerninghighways, the focus is on the American case law to predict the likely consequences ofrecognition of the public trust doctrine at Canadian common law. Importantly however,the distinctive features of the American public trust doctrine are either identical to thefeatures of the public rights of fishing and navigation considered in Chapters One andThree or a logical extension of those features in a modern society. Accordingly, asCanadian law has recognized the public trust doctrine and continuously affirmed thepublic rights of navigation and fishing, predicting the consequences of a revival of thedoctrine at Canadian common law is not a purely hypothetical exercise. At the very least,a revitalized Canadian public trust should embrace the distinctive features of the publicrights of navigation and fishing identified in Chapters One and Three. The predictedconsequences of recognition of the public trust doctrine at Canadian common law are :1. the recognition of a substantive right, and therefore legal standing, in membersof the public to vindicate public trust interests;2. the imposition of an affirmative fiduciary obligation on government with respectto trust resources;3^the imposition of an administrative process on government with respect to8supervision and disposition of trust resources ( a logical modern day extension ofthe duty of care and protection imposed on the Crown with respect to the publicrights of navigation and fishing);4. restrictions on alienation of trust resources, in particular the restriction thatlegislation is required to modify or extinguish public trust resources; and5. in an environmental context, an increasing recognition of the importance of thenatural environment and the special and inter-related nature of trust resources(which facilitates an ecological approach to trust property).The public trust doctrine does exist at Canadian common law. Although the public trustwill not provide a solution to all environmental problems, it will provide bothenvironmentalists and the government with another tool to help protect and managediminishing natural resources in Canada. This function will be of continued importanceuntil Canadian environmental legislation expands to embrace a wider range ofenvironmental issues and problems and broad administrative discretion is circumscribedby defined statutory limits.Finally, and probably most importantly, regardless of the specific consequences ofrecognizing the public trust doctrine at Canadian common law, the public trust serves toremind both government and the private sector that the public has an interest in ourdiminishing natural environment that should be affirmed and protected.9CHAPTER ONEROMAN AND COMMON LAW ORIGINS OF THE PUBLIC TRUSTIntroductionThis Chapter is divided into two main sections. Part I explores the Roman law and earlyEnglish common law origins of the public trust. A constant theme throughout Part I isthat public rights (the "jus publicum") arise in resources such as the sea, the sea-shore,tidal waters and highways because these resources are inherently public; they are ill-suited for permanent private ownership. Furthermore, particularly with respect to the seaand the sea-shore, there is a perception that the resource should be public, because it issomehow "special" in nature.The recognition of public rights in navigable waters, the sea-shore and highways and thecorresponding duties of care and protection imposed on the Crown laid the foundationsfor the public trust. Part II of Chapter One attempts to ascertain the nature and scope ofthese public rights and the public rights with respect to coast protection at Englishcommon law. The trail through dusty law reports reveals certain distinctive features inthe treatment of these resources by the common law. It is clear from the cases that theseresources are in some way "special" - the public rights are generally paramount to therights of the Crown, bind any grantee of the Crown, include incidental rights and thereare significant restrictions on extinguishment of the public rights. Part III focuses brieflyon the economic approach to common property, which also reinforces the view thatcertain resources such as waterways and commons are "special" and public in nature.10Although there is no resounding declaration by English courts of a public trust, the publicrights in navigable waters, tidelands, highways and coast protection are generallyjealously guarded and the Crown is the protector of those rights. It was presumably thesedistinctive features of the "jus publicum" that led American and Canadian courts soconfidently to assert a public trust with respect to navigation, fishing and highways.Part I - Roman Law and Early English Common LawAlthough much has been written about the origins of the public trust in Roman law andthe incorporation of Roman law into English common law, 1 a brief examination of theseancient origins is worthwhile for several reasons. First, it reveals that since Romantimes, certain resources have, by their very nature, been regarded as "special" and ill-suited to permanent private ownership, and second, it reveals that the public trust hashistorical roots in English common law and accordingly, "it should be possible to developa common law concept of the public trust [in Canada] by relying on the same legal rootsSee in particular : P. Deveney, "Title, Jus Publicum and the Public Trust : An HistoricalAnalysis" (1976) 1 Sea Grant L.J. 13 and S.Moore, A History of the Foreshore and theLaw Relating Thereto, 3rd ed. (London : Stevens & Haynes, 1888). For a brieferconsideration of the historical background see : J.S. Stevens, "The Public Trust : ASovereign's Ancient Prerogative Becomes the People's Environmental Right" (1980) 14U.C.D.L.Rev. 195; M. Selvin, "The Public Trust in American Law and EconomicPolicy, 1789 - 1920" (1980) Wis.L.Rev. 1403; J.L. Sax, "The Public Trust Doctrine inNatural Resources Law : Effective Judicial Intervention" (1970) 68 Mich.L.Rev. 471;V.P. Nanda & W.K. Ris,Jr., "The Public Trust Doctrine : A Viable Approach toInternational Environmental Protection" (1976) 5 Ecology L.Q. 291; Comment, "ThePublic Trust in Tidal Areas : A Sometime Submerged Doctrine" (1970) 79 Yale L.J.762; R.J. Lazarus, "Changing Conceptions of Property and Sovereignty in NaturalResources : Questioning the Public Trust Doctrine" (1986) 71 Iowa L.Rev. 631.11that fostered the doctrine in the United States". 2The public trust has its origins in Roman law. 3 As restated in The Institutes ofJustinian, under Roman law, "By the law of nature, these things are common to mankind- the air, running water, the sea, and consequently the shores of the sea" . 4 This "naturallaw" reflected the belief of early writers such as Ovid, Hesiod, Horace and Virgil thatin earlier times (the "Golden Age") people lived in total harmony and shared abundantnatural resources. 5C. Hunt, "The Public Trust Doctrine in Canada" in J. Swaigen, ed. Environmental Rightsin Canada (Toronto : Butterworths, 1981) at 185.For a detailed review of the Roman law background to the public trust and theincorporation of Roman law principles by Bracton and Hale, see Deveney, supra, note1.T.C. Sandars, ed. & trans., The Institutes of Justinian, Book II Tit. I (1), 8th. ed.,(London : Longmans, Green & Co., 1888) at 90. Interestingly, one author notes thatJustinian intended The Institutes as a textbook, not as binding precedent and thataccordingly some commentators have argued that no legal doctrine protecting publicrights in natural resources existed during the Roman Empire : Lazarus, supra, note 1 at634 n. 12. Similarly, Sandars comments at xxxii - xxxiii that The Institutes were to bean elementary work, drawn from The Institutes of Gaius. W.A. Hunter, Roman Law(London : Sweet & Maxwell, Ltd, 1897) at 91-92 describes The Institutes as "anelementary treatise for students" and yet notes that the work was published by a specialconstitution investing it with the force of law. Thomas makes the same point,commenting that although intended as an "introductory, simple exposition of (in themain) private law for students embarking on a study of law, they yet themselves had theforce of law as an integral part of the Emperor's general compilation". J.A.C. Thomas,ed. & trans., The Institutes of Justinian, (Cape Town : Juta & Company Ltd., 1975) atvii.Lazarus, supra, note 1 at 634 n. 111. Deveney, supra, note 1 at 28 stresses theimportance of this "myth of communality" beyond the Roman era : "the myth ofcommunality has persisted throughout Western history as an underground paradigm ofthe ideal state : it entered Christianity through the influence of Stoicism and the biblicalstory of Eden, ran as a constant sub-theme through the social upheavals of the Middle12Corporeal property is divided in The Institutes into things capable of private ownership(in nostro patrimonio) and things incapable of private ownership (extra nostrumpatrimonium). 6 Secular things incapable of private ownership fell into one of threecategories : (1) things common to all (res communes), (2) things belonging to the state(res publicae) and, (3) things belonging to a corporation (res universitatis). 7The air, running water and the sea were all res communes - they "were set apart by theirvery natures and because they were less susceptible of private acquisition." 8 Thedistinguishing feature therefore of res communes or common property was that it was ill-suited for private ownership; the public could not, as a practical matter, be excludedfrom the use of the resource.Private property implies not merely the right of the owner to use the thing ofwhich he is owner, but also the right to prevent anyone else using it, even whensuch use would not in the slightest degree interfere with his enjoyment of it. Butcertain objects cannot be so appropriated. The atmosphere, for instance, must beused incessantly by all on pain of death, and no human being can be excludedfrom the use of it. Private property in the air is physically impossible. Next to theair, the high sea is most difficult of appropriation, and practically no combinationof men is ever likely to have such a naval force as would enable them to preventothers using the ocean.'Ages, and had a considerable effect on the common law ... In its demythologised form,the myth of communality still persists in the attitude towards "nature" displayed by manytoday : there is something "unnatural" in the thought of one man "owning" a mountainor a part of the sea and excluding others."6 Thomas, The Institutes, Book II Tit. I, supra note 4 at 65.' Thomas, ibid. at 75; Hunter, supra note 4 at 309-315 and Sandars, supra note 4 at 90.8 Deveney, supra, note 1 at 27.9 Hunter, supra note 4 at 309.13At Roman law, the seashore, to the line of the highest winter tide, was "res communes"and was incapable of ownership.' Although anyone could build on the seashore andwould own the building or other construction, once the construction came down, theplace where the construction had been became common property once again."Interestingly, Deveney argues that although there were "economic stimuli" to therecognition of the foreshore at Roman Law, the "mythical and philosophical aspects ofthe interface of the sea and dry land" were of equal importance.'Symbolically, the shore is a "liminal" area, a transitional edge, and appears tohave been recognised as such in classical antiquity. At common law, the reasonusually assigned for the separate status of the sea and shore is the fact that theyare incapable of ordinary appropriation and use, but underlying that reason -which in any event becomes less important as technology finds new ways ofexploiting coastal area resources - must be recognised the intuitive sense that thesea and shore are in some way "special". 13Similar comments have been made about water as a resource. Professor Joseph Sax, the10 Thomas, supra, note 4 at 65, 75. Sandars, supra, note 4 at 91.11 Thomas, ibid. at 75, Sandars, ibid. Deveney, supra note 1 goes somewhat further,remarking at 30 that, "It was their character as "things common to all" that made the seaand seashore capable of individual appropriation. Each person could use the commonthings to the limit of his own need, and appropriate what he wanted to his own use - as,for example by building a beach villa or staking out an area of the ocean - and thisappropriation made the area private and gave the holder real ownership, which lasted aslong as the structures and which was, presumably, heritable and assignable." He statesat 29, "the sea and the seashore were 'common to all' only insofar as they were not yetappropriated to the use of anyone or allocated by the state."12 Deveney, supra note 1 at 27.13 Ibid. at 27-28.14author of the seminal American article on the public trust doctrine 14 and a water lawexpert, has emphasized that the "central and unambiguous message [is] that water is andalways has been a public resource" . 15 Stressing the special nature of water as aresource, he remarked, "[w]ater is not like a pocket watch or a piece of furniture whichan owner may destroy with impunity. The rights of use in water, however long standingshould never be confused with more personal, more fully owned property". 6 Wilkinsonalso emphasizes the "special treatment" given by many countries to major bodies ofwater, concluding that :The real headwaters of the public trust doctrine, then, arise in rivulets from allreaches of the basin that holds the societies of the world. These things werearticulated in different ways in different times by different peoples. In some casesthe waters ran deep, in other places the waters ran shallow. But the idea of a highpublic value in water seems to have existed in most places in some fashion!'Justinian's rules were incorporated into French law, Spanish law, Mexican law and,through the writings of Bracton, into English common law in the thirteenth century.Bracton did not incorporate The Institutes in their entirety however in his work DeLegibus Et Consuetudinibus Angliae ("Concerning the Laws and Customs of England").In particular, he omitted section five of The Institutes, which provides that there can beno property in the sea-shores. Moore argues that this omission was probably deliberate14 Sax, supra note 1.15 Ibid. at 475.16 Ibid. at 482.17 C.F. Wilkinson, "The Headwaters of the Public Trust : Some Thoughts on the Sourceand Scope of the Traditional Doctrine" (1989) 19 Envtl. L. 425 at 431.15because "Bracton must have been well aware that the property in the foreshore was, atany rate in some cases, vested in the subject" . 18 The modification of the law to suitdiffering jurisdictional requirements, which was to occur also in the United States andCanada with respect to the definition of "navigable waters", had already begun.The most fundamental innovation introduced by English common law however, was theconcept of Crown ownership of the foreshore.' In contrast, as mentioned earlier, atRoman law the seashore was incapable of permanent private ownership. The prima faciepresumption that the Crown owns title to the foreshore appears to have been firstintroduced by Thomas Digges in 1568 in his treatise "Proofs of the Queen's Interest inLands left by the Sea and the Salt Shores thereof" . 20 However, in reality, practicallyMoore, supra, note 1 at 33-34. Deveney, supra, note 1 makes the same point at 37. BothMoore and Deveney also note that Bracton's description of the law in England is notalways accurate. Moore remarks at 33, "It has, however, been clearly decided that manyof the passages which Bracton took from the Civil Law are inconsistent with, and formno part of, the English Common Law." Deveney states at 36 "where Bracton relies onRoman law, and specifically where he lays down the rule that the sea and the seashorewere common to all ... he is most probably describing a rule of law he thought desirable,relying on the codified wisdom of the Roman law as a model for the common law, andnot stating a rule that actually obtained in England at the time." See also G.J. MacGrady,"The Navigability Concept in the Civil and Common Law : Historical Development,Current Importance, and Some Doctrines That Don't Hold Water" (1975) 3:4Fla.St.U.L.Rev 511 at 556 and Blundell v. Catterall (1821) 5 B & Ald 268 at 290-294,106 ER 1190 at 1198-1199.Stevens, supra, note 1 at 197-198; Nanda & Ris Jr, supra, note 1 at 297; Lazarus,supra, note 1 at 633-635; B.S. Cohen, "The Constitution, the Public Trust Doctrine andthe Environment" (1970) Utah L.Rev. 388 at 389.Moore, supra, note 1 at 33. Moore emphasizes at 33 that this presumption did notoriginate with Bracton, it being "abundantly clear that Bracton had no idea of any generaltitle existing in the Crown to the foreshore of the kingdom, either by virtue of theprerogative, or as based upon any theory that the foreshore at that time remained in the16the whole of the foreshore was claimed by private interests by the time of Edward I.Moore refers disparagingly to Digges' "invention", and yet observes "having shewn itsfalsity as a theory based upon true fact ... [it is] further pointed out that it is as full ofvitality today as it was when Mr Digges invented it" . 21Digges' prima facie presumption was actively asserted by Elizabeth I and the Stuarts, 22but did not really gain credibility until Sir Matthew Hale wrote his treatise De Jure Mariset Brachiorum ejusdem (Concerning the Law of the Sea and its Arms). Hale's treatisebecame the standard text on the sea and navigable and private waters and is referred toalmost religiously in the early English and American cases. Deveney stresses that it"would be difficult to overemphasize the influence of either the author or the work onthe development of American law" .23Two key features of Hale's treatise are first, the acceptance, albeit on questionableCrown as parcel of the great waste of the realm not granted out."Ibid. at 184.Interestingly, it appears that Charles I may have been beheaded as a result of suchassertions. One of the causes cited to support his beheading was the "taking away ofmen's rights under colour of the King's title to land between high and low water marks";Article 26 of the Grand Remonstrance presented to Charles I on December 1, 1641, citedin Lazarus, supra, note 1 at 635 n. 19 and, Moore, ibid. at 310.Supra, note 1 at 44. Deveney refers at 44-45 to the wonderful description of Hale in Exparte Jennings 9 Cow. 518, 536a (N.Y.Ct. of Errors 1826) as "[His words] almostjustify, in respect to his writings, the extravagant encomium ... that, "with a mindbeaming the effulgence of noonday, he sat on the bench like a descended god!".17grounds,' of the prima facie theory of Crown ownership' and, second, theintroduction of the concept of jus publicum (that part of the law concerning publicaffairs) into English common law.' Regarding the jus publicum, Hale stated :That the people have a publick interest, a jus publicum, of passage and repassagewith their goods by water, and must not be obstructed by nuisances or impeachedby exactions ... For the jus privatum of the owner or proprietor is charged withand subject to that jus publicum which belongs to the king's subjects; as the soilof a highway is, which though in point of property it may be a private man'sfreehold, yet it is charged with a publick interest of the people, which may notbe prejudiced or damnified.'Accordingly, the king's title to the seashore was a qualified title, with the publicretaining a "beneficial" interest in the seashore. While the king could alienate his privaterights or title, the jus privatum, he could not extinguish or alienate the public rights orjus publicum." Any "grantee" of the jus privatum from the Crown (usually byimmemorial custom or prescription) was similarly obliged to respect the public rights,Deveney, supra, note 1 at 45; MacGrady, supra, note 18 at 562-568; and Moore, supra,note 1 c XIII (for a discussion of the first cases affirming the prima facie theory underthe reign of Charles I)."The shore is that ground that is between the ordinary high-water and low-water mark.This doth prima facie and of common right belong to the king, both in the shore of thesea and the shore of the arms of the sea" : De Jure Maris, in Moore, supra, note 1 at378.Deveney, supra, note 1 at 45.De Jure Maris, in Moore, supra, note 1 at 404-405.Hale appears to regard the jus publicum as a servitude, stating early in his treatise,"Though fresh rivers are in point of propriety as before prima facie of a private interest;yet as well fresh rivers a salt, or such as flow and reflow, may be under these twoservitudes, or affected by them; viz, one of prerogative belonging to the king, andanother of publick interest, or belonging to the public in general.", De Jure Marisin Moore, supra note 1 at 371-372.18"for thejusprivatum, that is acquired to the subject either by patent or prescription, mustnot prejudice the jus publicum, wherewith public rivers or arms of the sea are affectedfor public use."'Importantly, together with the recognition of the jus publicum came certainresponsibilities and obligations. Lord Hale refers to affirmative duties imposed on theCrown:And another part of the king's jurisdiction in reformation of nuisances is, toreform and punish nuisances in all rivers, whether fresh or salt, that are acommon passage ... and as the highways by land are called alta viae regiae sothese publick rivers for publick passage are called fluvii regales, and hautstreames le Roy ... because they are of publick use, and under the king's specialcare and protection.3°It seems likely therefore, that Hale's division of title to the seashore into the jus publicumand the jus privatum, together with the imposition of guardianship type obligations uponthe Crown laid the initial foundations for the public trust doctrine at common law.Although Deveney claims that there "is no suggestion of a public trust in Lord Hale'swritings" 31 , he does concede that Hale's description of the King as "vindicator anddefender of the public's rights" could be construed as imposing a "trust" obligation on29 Ibid. at 389-390.30 Ibid. at 374.31 Deveney, supra note 1 at 48.19the Crown to preserve the jus publicum. 32Part II - English Common LawIntroductionIt is difficult to pinpoint exactly when the seeds of the public trust doctrine were sownin English common law. In A.G. for B.C. v. A.G. for Canada, A.G. for Ontario [1914]A.C. 153 (Privy Council), Viscount Haldane stated with respect to the public right to fishin tidal waters :[T]he subjects of the Crown are entitled as of right not only to navigate but tofish in the high seas and tidal waters alike. The legal character of this right is noteasy to define. It is probably a right enjoyed so far as the high seas are concernedby common practice from time immemorial, and it was probably in very earlytimes extended by the subject without challenge to the foreshore and tidal waters... The right into which this practice has crystallized resembles in some respectsthe right to navigate the seas or the right to use a navigable river as a highway,and its origin is not more obscure than that of these rights of navigation."Certainly, as mentioned earlier, Hale's recognition of public rights (the "jus publicum")in navigable waters, the sea-shore and highways arguably laid the foundations for the32 Deveney, supra note 1 at 48. Deveney states however that the "trust" duty was unrelatedto questions of title and conveyancing. Other academics have asserted that the public trustdoctrine has no foundation in English common law : see in particular, T.P. Brady, "ButMost of It Belongs to those Yet to be Born : The Public Trust Doctrine, NEPA, and theStewardship Ethic" (1990) 17 :3 B.C. Envtl. Aff. L. Rev. 621 at 629, and MacGrady,supra note 18 especially at 547 and 568. Professor Sax in his article "Liberating thePublic Trust Doctrine From its Historical Shackles" (1980) 14 U.C.D.L. Rev. 185 refersat 189 to medieval French law and claims that "the proper sources for the legal publictrust doctrine today [are] the tradition of the commons in medieval Europe".33 [1914] A.C. 153 at 169. In considering the rare examples of exclusive fishing rights intidal waters, he remarks at 170-171; "The origin of these rare exceptions to the publicright is lost in the darkness of the past as completely as is the origin of the right itself".20public trust. Interestingly however, there has been little detailed academic considerationof the early treatment of these public rights by the English common law. Although theearly American and Canadian courts recognised a public trust with respect to navigablewaters, tidelands, fishing and highways, the period between the reception of Roman lawprinciples into English common law and the declaration of a public trust by Americanand Canadian courts is largely unchartered territory in public trust writings. However,such a review is necessary if the nature of the public trust doctrine at Canadian andAmerican law is to be fully understood. This section seeks to define the nature of thesepublic rights, the precursor to the public trust, with a view to better understanding thescope of the public trust doctrine.Navigation and FishingThere is some doubt as to whether the assertion of public rights of fishing and navigationexisted in England prior to the signing of the Magna Charta in 1215. 34 Similarly, theactual scope of the rights protected by the Magna Charta has been queried, onecommentator stating that "the common law has expanded the Magna Charta almostunrecognisably over the years" 35 and another referring to "the process of creativeNanda & Ris, supra, note 1 at 298; Cohen, supra, note 19 at 389; Lazarus, supra, note1 at 635 n. 16.Comment, "The Public Trust in Tidal Areas", supra, note 1 at 767. This article reviewsthe history of the Magna Charta in some detail, the author stressing that, "Every grainof public interest protection to be found in the Magna Charta was subsequently seizedupon and developed to illogical and unhistoric lengths by a legal system struggling toadapt the law of the foreshore to new and more demanding economic and politicalconditions" at 766. See also Lazarus, supra note 1 at 635 n. 16.21judicial misunderstanding in favour of public rights" . 36 The Magna Charta didhowever, reflect a doctrinal trend back to protection of the public interest especially withrespect to navigation and fishing rights, and was largely a response to a process of"proliferating private ownership and control of tidal areas" . 3' References to the MagnaCharta in the case law on navigation and fishing generally relate to the inability of theCrown to create an exclusive fishery. It is now well settled at English and Canadiancommon law that "since the Magna Charta no new exclusive fishery could be created byRoyal grant in tidal waters, and that no public right of fishing in such waters, thenexisting, can be taken away without competent legislation" . 38Navigable WatersKey to recognising the public rights of fishing and navigation was establishing that thewater in question was "navigable" and, accordingly, the very early cases seem to focusprimarily on this issue. In Fitzwalter's (Lord) Case (1674) 1 Mod Rep 105, affirmed inCarter v. Murcot (1768) 4 Burr 2162, [1558-1774] All ER Rep 620, the court held,Deveney, supra note 1 at 39. Deveney refers however at 39 to the Magna Charta as "theoriginal source of the public's rights in the coastal area, both because of itsdemonstration of the principle that the king was subject in some ways to the people, andbecause of several specific limitations on his powers."Comment "The Public Trust in Tidal Areas", supra note 1 at 765. Similarly Deveney,supra note 1 at 39 remarks that "Magna Carta is primarily a protest by the landed baronsagainst infringements of their property rights".A.G. for British Columbia v. A.G. for Canada [1914] AC 153 (PC) affirming the Houseof Lords' decision in Malcomson v. O'Dea (1863) 10 HL Cas 593, 11 ER 1155; Meisnerv. Fanning (1842) 3 N.S.R. 97 (T.D.); Donnelly v. Vroom (1907) 40 N.S.R. 585 (T.D.)and Rose v. Belyea (1867) 12 N.B.R. 109 (C.A.).22citing Hale, that in the case of a river that flows and reflows, and is an arm of the sea,the right of fishing is prima facie common to all. Although the flowing and re-flowingof the tide did not of itself determine a river to be navigable, it was prima facie andcogent evidence of navigability : Fitzwalter's (Lord) Case supra, Warren v. Matthews(1703) 6 Mod. 73, 91 ER 312, Miles v. Rose (1814) 5 Taunt. 705, 128 ER 868 and, R.v. Montague (1825) 4 B & C 598, 107 ER 1183. 39 However, to be navigable, the river"must be one which may fairly be said to be within the influence of the ebb and flow ofthe tides in the ordinary course of things" : Reece v. Miller (1882) 8 QBD 626 DC, at631.The public rights of navigation and fishing which were "attached" to navigable watershad certain distinct features :(i) the public rights were paramount to the rights of the Crown;(ii) any grantee from the Crown took subject to the public rights;(iii) incidental rights were included;(iv) the public rights could be extinguished only by legislation;(v)^the Crown (and later government) had certain affirmative duties withregard to the care and protection of those public rights.See also : R. v. Smith (1780) 2 Doug KB 441, 99 ER 283; Malcomson v. O'Dea (1863)10 HL Cas 593 at 619, ("the soil of all navigable rivers ... so far as the tide flows andreflows, is prima facie in the Crown, and the right of fishing is prima facie in thepublic'); Murphy v. Ryan (1868) IR 2 CL 143, citing Hale, De Jure Maris; Lichester(Earl) v. Raishleigh (1889) 61 LT 477, 5 TLR 739; Sim E. Bak v. Ang Yong Huat[1923] AC 429 (PC).23Public Rights ParamountThe main public rights associated with navigable rivers and the original core of the publictrust were the right of navigation and the right of fishing, which is often subsumed withinthe broader public right of navigation. These rights were considered to be of suchfundamental importance that they were paramount to the rights of the Crown as ownerof the foreshore and the soil under navigable rivers. The common law right of navigationin a river was paramount to the power of the Crown with respect to that river : Williamsv. Wilcox (1838) 8 Ad & Ed 314, 112 E.R. 857.Grantee Took Subject To Public RightsAs these rights were paramount to the rights of the Crown, any grantee from the Crowntook subject to the public rights. In A.G. v. Parmeter (1811) 10 Price 378, 147 E.R.345, the court held that even a grant of the foreshore by Letters Patent was insufficientto extinguish the jus publicum between the high and low water mark :It is perfectly clear that all the soil under the salt water between high-water markand low-water mark is the property of the Crown. Such property has certainlybeen (as it may be) communicated in a great many instances to the subject, butthat is always subservient to the public right of the King's subjects generally. Itis compared by Lord Hale ... to the case of a highway. The private right of theCrown may be disposed of, but the public right of the subject cannot ... the Kingcan in no degree affect the public right of a subject passing and re-passing uponthe salt water. A grant of the soil must be considered as subject to the publicright. '' (1811) 10 Price 378 at 400-401. The same point is made in other early cases such as :A.G. v. Burridge (1822) 10 Price 350; Williams v. Wilcox (1838) 8 Ad & Ed 314; A.G.v. Wright [1897] 2 QB 318 and Fitzhardinge (Lord) v. Purcell [1908] 2 Ch 139.24The position is aptly summarised by the House of Lords in Gann v. Free Fishers ofWhitstable (1865) 11 HL Cas.192, 11 E.R. 1305 :The bed of all navigable rivers where the tide flows and reflows, and ofall estuaries or arms of the sea, is by law vested in the Crown. But thisownership of the Crown is for the benefit of the subject, and cannot beused in any manner so as to derogate from, or interfere with the right ofnavigation, which belongs by law to the subjects of the realm ... If theCrown therefore grants part of the bed or soil of an estuary or navigableriver, the grantee takes subject to the public right, and he cannot inrespect of his ownership of the soil make any claim or demand, even ifit be expressly granted to him, which in any way interferes with theenjoyment of the public right. 41Given that the public rights of navigation and fishing were paramount to the privaterights of the Crown in the foreshore and the soil under navigable waters and, bound anygrantee from the Crown of such soil, what was the scope of these rights ?More Than A Right Of Access - Incidental Rights IncludedMany modern commentators refer to the right of navigation and/or the public trust asprimarily a right of access to trust resources. 42 Although there is some support in thecase law for this view,' a broader review of the early common law indicates that(1865) 11 HL Cas. 192 at 207-208.See for example : H.C. Dunning, "The Public Trust : A Fundamental Doctrine ofAmerican Property Law" (1989) 19 Envtl. L. 515 at 519; M.C. Blumm, "PublicProperty and the Democratization of Western Water Law : A Modern View of the PublicTrust Doctrine" (1989) 19 Envtl.L. 573, especially at 579-580.In particular Orr Ewing v. Colquhoun (1877) 2 App.Cas. 839. In that case, the Houseof Lords held that the right of navigation was not a right of property. Lord Gordon andLord Hatherly described the right of navigation as being similar to or the same as a rightof way.25classifying the right of navigation as merely a right of passage is unduly restrictive. Fora start, the public right of navigation is not just a right of passage, it encompasses alsothe "ordinary incidents of navigation" : A.G. v. Wright [1897] 2 QB 318; the rightsancillary or incidental to the right of navigation : Gann v. Free Fishers of Whitstable(1865) 11 HL Cas. 192; Fitzhardinge (Lord) v. Purcell [1908] 2 Ch 139; Iveagh v.Martin [1961] 1 QB 232 and Alfred F.Beckett Ltd v. Lyons [1967] Ch 449. The right ofnavigation is "for the purposes of commerce, trade and intercourse, and also the libertyof fishing in the sea or the creeks thereof" : Blundell v. Catterall (1821) 5 B & Ald 268at 298, 106 ER 1190 at 1201.The right of navigation has been held to include incidental rights such as the right toanchor : Gann v. Free Fishers of Whitstable, supra; the right to fix moorings in the soilof the foreshore for the purposes of mooring boats : A.G. v. Wright, supra; the right toremain for a convenient time : Iveagh v. Martin, supra; the right to load and unload :Iveagh v. Martin, supra, Tate & Lyle Industries Ltd v. Greater London Council [1983]2 AC 509; and, the right to ground : Colchester Corporation v. Brooke (1845) 7 QB339. ' However, the public rights with respect to the foreshore include neither the rightto pass over the shore for the purpose of bathing in the sea : Blundell v. Catterall (1821)5 B & Ad 268, affirmed in Brinckman v. Matley [1904] 2 Ch 313; nor, the right to enterupon the foreshore to collect sea-washed coal : Alfred F.Beckett Ltd, supra.' The list of incidental rights was prepared primarily from Halsbury's Laws of England,vol. 49, 4th ed. (London : Butterworths, 1984) para 893.26Legislation Required To Extinguish Public RightsIt seems unlikely that so much importance would be attached to the right of navigationif it was a right of access or passage only. In particular, why impose significantrestrictions on the power to alienate the resource just to protect a right of passage ? Asmentioned earlier, the right of navigation could not be destroyed by Royal Grant orLetters Patent because the Crown was incapable of alienating the jus publicum. Althoughit was later recognised that Parliament could extinguish the right of navigation, legislationwas required. In R. v. Montague (1825) 4 B & C 598, 107 E.R. 1183, the court heldthat the right of navigation could be extinguished only by Act of Parliament, writ of quoddamnum ' or, by natural causes such as the recess of the sea or an accumulation ofmud. Similarly, the public right of navigation could be taken away or diminished bylicence granted by a public body only provided it was duly authorised by legislation todo so : Kearns v. Cordwainers' Co. (1859) 6 CBNS 388, 161 E.R. 508.Role And Duties Of The CrownAnother important feature of the right of navigation indicating that it is more than a rightof way is the role of the Crown, and later, government. As noted in Gann v. FreeFishers of Whitstable supra, the Crown's ownership "is for the benefit of the subject, andcannot be used in any manner so as to derogate from, or interfere with, the right ofA writ of quod damnum is "an original writ issuing out of Chancery to a sheriff directinghim to summon a jury to inquire whether the proposed step would be detrimental to thepublic ... This process has long fallen into desuetude" : Halsbuty's Laws of England,vol. 21, 4th ed. (London : Butterworths, 1981) para 143.27navigation". 46 Likewise in Brinckman v. Matley [1908] 2 Ch 313, Lord Justice VaughanWilliams stated that the "Crown holds the foreshore upon the terms that it must recognisethe jus publicum, whatever it may be, over the foreshore, and do nothing inconsistentwith that jus."47 Furthermore, as mentioned earlier with reference to Lord Hale and the"jus publicum", the duties of the Crown with respect to public resources such as theforeshore were active ones - there was a "duty which the law casts on the Crown ofreforming and punishing all nuisances which obstruct navigation of public rivers" :Williams v. Wilcox (1838) 112 ER 857 at 864."Although the courts in these cases do not actually describe the Crown's role as that oftrustee, it seems clear that some form of fiduciary obligation is imposed on the Crown -the Crown holds the resources in question, subject to the interests of the public, and incases of nuisance, must actively protect the resource by removing the obstruction. Publicrivers are, in Lord Hale's words "under the king's special care and protection."The Public Rights As A Public TrustOne of the first descriptions of this obligation as a trust obligation appears to have been(1965) 11 HL Cas. 192 at 207-208.[1904] 2 Ch 313 at 325.See also : A.G. v. Terry (1874) 9 Ch. App. 423 per Sir W.M. James, L.J. at 432,"where a public body is entrusted with the duty of being conservators of a river [in thiscase by Act of Parliament], it is their duty to take proceedings for the protection of thosewho use the river", which included removing obstacles to navigation. In addition, see thediscussion later in this Chapter on "Coast Protection" and the positive duty imposed onthe Crown to protect the realm of England from the incursions of the sea.28by Best J. in his dissenting judgment in Blundell v. Catterall (1821) 5 B & Ald 268, 106E.R. 1190. At issue in the case was whether the public had a right at common law topass over the sea shore for the purpose of bathing in the sea. The plaintiff, who was lordof the manor and the owner of the soil of the sea shore and the exclusive right to fish onthe shore with stake nets, brought an action in trespass to prevent the defendant fromtransporting people in carriages from a place above the high-water mark across the seashore to the sea for the purpose of bathing. The defendant's argument that the King'ssubjects had a common law right to pass over the sea shore for the purposes of bathingwas rejected by the majority, primarily because there had been no specific recognitionof such a right either by Lord Hale in De Jure Maris or, by the common law. HolroydJ. stated that "[t]he present claim ... is not ... supported either by necessity, by generalusage of the realm, which forms the common law, or by special usage in the particularplace; nor is it to be found in our law books" and, further, the claim was inconsistentwith many passages in Lord Hale's treatise.' Abbott C.J. , reflecting a singularlyrestrictive view of the development of the common law, commented that :Now, if such a common law right existed, there would probably be some mentionof it in our books; but none is found in any book, ancient or modern. If the rightexist now, it must have existed at all times; but we know that sea bathing was,until a time comparatively modern, a matter of no frequent occurrence, and that(1821) 106 ER 1190 at 1202-1203. Interestingly, Holroyd J also stated at 1201 that therecognition of a general public right to use the sea shore, even for temporary purposes,would be "inconsistent with the nature of permanent private property". This seemssomewhat strange given that Hale specifically states that "The jus privatum that isacquired to the subject, either by patent or prescription, must not prejudice the juspublicum wherewith public rivers and arms of the sea are affected for public use",quoted in Blundell v. Catterall, ibid. at 1193. For recognition of the public trust at Irishcommon law, see Murphy v. Ryan (1868) IR 2 C.L. 143 at 149.29the carriages, by which the practice has been facilitated and extended, are ofcomparatively modern invention. 5°In contrast to the majority, Best J. considers the much broader question of public accessto the sea-shore. In his view, the "universal practice of England shews the right of wayover the sea-shore to be a common law right". 51 A key theme throughout his judgmentis the nature of the resource at issue and its importance to the public. Not only is "freepassage of the sea shore ... essential to the convenience and safety of navigation",52but the "right of bathing in the sea, which is essential to the health of so many persons,is as beneficial to the public as that of fishing, and must have been well secured to thesubjects of this country by the common law". 53 Accordingly, "free access to the sea isa privilege too important to Englishmen to be left dependant on the interest or capriceof any description of persons" .54Importantly, the public nature of the resource arises not just because of human demands(the anthropocentric rationale), but also because the very nature of the resource was seenas ill-suited for private ownership :But the barrenness of the greatest part of the sea [being the sea shore] hasprevented it from becoming the subject of exclusive property. It is useful only asa boundary and an approach to the sea, and therefor, ever has been, and ever50 Ibid. at 1205.51 Ibid. at 1194.52 Ibid. at 1195.53 Ibid. at 1196.54 Ibid. at 1193.30should continue common to all who have occasion to resort to the sea.'Having explained the rationale for the public nature of the sea shore, he concludes :The shore of the sea is admitted to have been at one time the property of theKing. From the general nature of this property, it could never be used forexclusive occupation. It was holden by the King, like the sea and thehighways, for all his subjects. The soil could only be transferred, subject to thispublic trust; and general usage shews that the public right has been excepted outof the grant of the soil.'The public trust arose therefore because of the inherently public nature of the propertyconcerned, like the sea and the highways. The public rights in the sea shore (the "juspublicum") were to be preserved and protected by the King as trustee of those rights.HighwaysThe analogy by Best J. of the foreshore with highways is an interesting one, because inother instances the comparison (and it has been a frequent one) has probably reinforcedthe perception that the right of navigation is just a right of way. For example, in A.G.v. Johnson (1819) 2 Wils Ch 87, 37 E.R. 240 at 246, the Lord Chancellor, Lord Eldon,stated that "the subject has a right to use that which may be called a water-highway, andwhich prima facie includes the water between high and low-water mark when it coversthe soil" and in Williams v. Wilcox (1838) 8 Ad & Ed 314, 112 ER 857, the court notesthat "It is clear that the channels of public navigable rivers were always highways",55 Ibid. at 1196.56 Ibid. at 1197.31although the court recognised that the analogy with highways was not complete." Iniveagh v. Martin [1961] 1 QB 232, Paull J. stated that the "rights of navigation areanalogous to the rights of the public on a highway on land, that is to say, the right ofcoming and going and doing these things incidental thereto". 58However, it is similarly restrictive to regard the jus publicum in respect of highways asmerely a right of passage or right of way. Certainly, as discussed in greater detail laterin this paper, early American and Canadian courts viewed municipal corporations vestedwith title to public streets as subject to a public trust. 59 Furthermore, as with the publicrights of navigation and fishing, the public rights with respect to highways are specialin nature and cannot be extinguished easily.Role Of The CrownAlthough the English cases do not specifically refer to municipal corporations as beingunder a "trust" obligation with respect to highways, they are described as "guardians ofthe highways" in several cases, which comes fairly close.' Furthermore, similar to the57 (1838) 8 Ad & Ed 314 at 333.58 [1961] 1 QB 232 at 273.59 For a description of the American cases concerning the public trust in streets, see Selvin,supra note 1.60 Goodson v. Richardson (1874) 9 Ch App 221 at 223 ("the public authorities who are theguardians of the highways"); Bagshaw v. Buxton Local Board of Health (1875) 1 Ch.D.220 at 225 (refers to the defendants, in whom the public highway was vested under theTown Improvement Acts, as the "guardians of the road").32right of navigation, the public authority is under a duty to prevent and removeobstructions : Bagshaw v. Buxton Local Board of Health (1875) 1 Ch.D. 220.Restrictions On ExtinguishmentAs with the right of navigation, the public rights with respect to the resource are notextinguished easily. At common law, the rule is "once a highway, always a highway" :Dawes v. Hawkins (1860) 6 CBNS 848; R. v. Platts (1880) 49 LJQB 848. The publiccannot release their rights with respect to a highway once those rights have beenacquired, and no authority can bind the public in purporting to release those rights. Mostimportantly, there is no extinctive presumption or prescription arising from non-user ofthose rights. 61 For example, in Dawes v. Hawkins, supra, although an ancient highwayhad been diverted and substituted by a new road which was used by the public for morethan 20 years, the court still held that the old road continued to exist in point of law; thepublic user of the new road being referable to the right of the public to deviate ontoadjoining land where a highway is obstructed. Similarly in Turner v. Ringwood HighwayBoard (1870) LR 9 Eq 418, the full extent of the road allowance was upheld despite along period of non-user. Although the road had been laid out at a width of 50 feet, only25 feet of the allotted space had been used as an actual road - the remainder had beenovertaken by vegetation and fir trees. The situation remained unchanged for 25 yearsuntil the Highway Board commenced cutting down the fir trees growing within the 50feet allotment. In dismissing an action by an adjoining land owner to restrain such61 Halsbury's Laws of England, vol. 21, supra note 45 at para 143.33cutting, the court affirmed that the public rights with respect to the road extended to thewhole width of the road, and they were entitled to have the whole width of the roadpreserved from obstructions. This right was not extinguished because trees had beengrowing over part of the road allowance for 25 years. 62It seems strange to impose such restrictions on extinguishment if the crux of the publicright with respect to highways is one of access or passage only. If passage is soimportant to the continuation of the right, why is the right not extinguished by a longperiod without use? It seems that, as Best J. indicated, it is the nature of the resource,rather than the right of passage, that leads to restrictions on extinguishment and theimposition of obligations on municipal corporations with respect to highways.Coast ProtectionThe obligation of coast protection appears to have been totally ignored by academics intheir discussions of the public trust. The subject warrants consideration however, becauseit is further evidence that the nature of a particular resource can lead to the impositionof guardianship type obligations on the Crown and government. In addition to theobligations concerning navigable rivers and highways, the Crown has a duty to preservethe realm from the inroads of the sea. In Isle of Ely Case (1609) 10 Co.Rep. 141a, 77See also Gerring v. Barfield (1864) 11 LT 270. In that case, an innkeeper had used partof a public highway for 20 years, for standing his guests' vehicles on market days.Despite this use over such a lengthy period, the court held that the action still amountedto an obstruction and the public right to use the whole width of the road remained.34E.R. 1139, the court stated :And it is to be known, that by the common law ... the King ought of right to saveand defend his realm, as well against the sea, as against the enemies, that itshould not be drowned or wasted, and also to provide, that his subjects have theirpassage through the realm by bridge and highways in safety.'As with the right of navigation, the Crown was unable to alienate the rights of the publicand accordingly, any grantee from the Crown took subject to the obligation to preservenatural or man-made barriers against the sea. In the leading case of A.G. v. Tomline(1880) 14 Ch.D. 58, the court was required to consider the defendant purchaser'sobligations concerning certain coastal lands. The court found that, when vested in theCrown, the land was held for the public purpose of protecting the land from the sea andthat upon transfer, the defendant then came under the same public obligation. Cotton L.J.stated :In my opinion, the land of the Defendant, when vested in the Crown, was heldby the Crown for the public purpose of protecting the land from the sea; the landcould not be granted free and discharged from that duty, and the Defendant,or those through whom he claims, as they theoretically take from the Crown,must hold the land subject to that duty and cannot be allowed to use the land insuch a way as to destroy the natural barrier against the sea.'Significantly, because of the nature of the resource and its importance to the public, theland could not be granted free of the obligation to protect the public. If the land vestedin the Crown was a natural barrier against the sea, neither the Crown, nor any grantee63 (1609) 10 Co.Rep. 141a at 141a. See also : Hudson v. Tabor 2 QBD 290 at 293; A.G.of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd [1915] AC 599 (Privy Council)at 620; Henwick v. Essex Catchment Board [1952] 1 All ER 765 at 766.64 (1880) 14 Ch.D. 58 at 70.35of the Crown, could act in a way which would deprive the public of that natural barrier.Drawing an analogy with the public right of navigation, Cotton L.J. stressed that "whereland is vested in the Crown subject to public uses, the grantee of the Crown must takeit subject to all the obligations to which the land was subject when in the hands of theCrown" . 65The obligation of coast protection extends also to artificial barriers, such as sea walls,because these barriers are constructed in furtherance of the Crown's obligations withrespect to coast protection. 66 In Tomline's case, James L.J. stated :That it is part of the duty of the Crown of England to protect the realm ofEngland from the incursions of the sea by appropriate defences, and ... it was noless the duty of the Crown to protect the realm by leaving unimpaired the naturaldefences which already existed from time immemorial and probably from periodsof remote geological antiquity, than to protect it by artificial defences whenartificial defences were required.'In Henly v. Mayor of Lyme (1828) 5 Bing. 91, 130 E.R. 995 the court affirmed that theKing was "bound to take care to guard and protect the shores and lands adjoining the seafrom being overflowed by the sea" and that in the borough of Lyme, this duty includedan obligation to repair the sea banks and sea walls which had been constructed to protectLyme against the incursion of sea water 68 Although upon transfer, the Corporation ofIbid. at 69.Sea walls owe their origin to the prerogative of the Crown to protect the realm againstthe incursion of sea water : per Greer L.J., Symes & Jaywick Assoc. Properties v. EssexRivers Catchment Board [1937] 1 KB 548 at 559.Ibid. at 61.(1828) 5 Bing. 91 at 109 and 112.6566676836Lyme received also the right to charge tolls and dues, the obligation to repair was notdependent upon receipt of funds -it arose by nature of the property itself :As long as they hold this estate, whether the estate produces funds or not, theyare bound to repair ... the moment they accepted the estate, they contracted theliability to repair, and that liability to repair will attach itself to them as long asthey continue to be the owners of the estate.'Tomline's case was applied in Symes & Jaywick Assoc. Properties v. Essex RiversCatchment Board [1937] 1 KB 548. In Syme's case, the plaintiffs claimed the right todrain sea water through a sea wall to farm lands behind the wall. In rejecting theplaintiffs' claim, the court noted that not only had the plaintiffs failed to establish theyhad been licensed by the Essex Rivers Catchment Board to drain the sea water throughthe wall, but that even if the Board had purported to consent to the plaintiffs' activities,that consent would be inoperative to convey any rights.' Although the court fails toaddress whether the legislature can override the public's rights to sea defences,' it isclear that the right is seen as so fundamental that the Crown and land owners cannotoverride it and, impliedly, any legislation seeking to extinguish the right would need tobe clear and express :According to the ancient law of the land, sea defences were constructed for thepurpose of keeping the sea out and not for letting it in. The Crown had a duty,no doubt of imperfect obligation in that the subject had no means of enforcing it,to maintain the sea defences of the country; and where such defences exist Icannot see how a person becoming entitled to land outside the sea wall could everIbid. at 112.[1937] 1 KB 548 at 559 and 571-572.Scott L.J. does however, state at 571 that "neither at common law nor by any existingstatute can an owner of land outside the sea wall possess a right to send sea waterthrough the sea wall".37acquire the right to drain sea water through the sea wall on to the land within, orto do anything to the sea wall likely to have that result. 72Scott L.J. saw the "old common law principle of public policy that our farm lands oughtto be protected from the sea" as so important, he held that the Land Drainage Act 1930 73impliedly recognised and enshrined the principle. 74Part III - Economic Treatment of Common PropertyCommon or public property is treated as special not just at law, but also at economics.'The traditional economic theory with respect to common property resources wasdeveloped by Garrett Hardin in his article "The Tragedy of the Commons" . 7'Commencing with the fundamental economic assumption that each individual is a rationalself-maximizer, he argues that the rational economic conclusion with respect to commonproperty is to exploit the resource to maximize private profits. However, as all otherusers of the commons will, if acting rationally in an economic sense, also pursuemaximum personal gain, the commons inevitably will be destroyed. He concludes that:72 Ibid. 571-572.73 20 & 21 Geo. 5, c. 44.74 Ibid. at 572.75 I am indebted to my thesis supervisor, Dr. Andrew Thompson for the suggestion that Iconsider the economic approach to common property as a means of reinforcing the notionthat certain resources are "special" in nature and ill-suited for private ownership.76 (1968) 162 Science 1243, reprinted in part in E. Hughes, A. Lucas & W. Tilleman,Environmental Law and Policy (Emond Montgomery Publishers Ltd : Toronto, Canada,1992) at 7:11-7:12.38Therein is the tragedy. Each man is locked into a system that compels him toincrease his herd without limit - in a world that is limited. Ruin is the destinationtoward which all men rush, each pursuing his own best interest in a society thatbelieves in the freedom of the commons. Freedom in a commons brings ruin toall.'Common or public property therefore is seen as contrary to the supposed marketcertainties that flow from private property. The position, as summarized by Rose 78 isthat, "exclusive private property is thought to foster the well-being of the community,giving its members a medium in which resources are used, conserved and exchanged totheir greatest advantage" ;79 or to describe the theory in economic terms, "[a] secure,exclusive right to resource extraction imparts the incentive to the user to utilize theresource at an optimal rate" . 80 Public property is anathema to many economists because"uncertainty about property rights invites conflicts and squanders resources"."Accordingly, the traditional economic preference is either for private or governmentownership of natural resources.Hardin's economic theory of common property has however, been called into question.77 Environmental Law & Policy, ibid. at 7:12.78 C. Rose, "The Comedy of the Commons : Custom, Commerce, and Inherently PublicProperty" (1986) 53:3 U. Chi. L. Rev. 711.79 Ibid. at 713.80 G.C. Stevenson, Common Property Economics - A General Theory and Land UseApplications (Cambridge : Cambridge University Press, 1991) at 3.81 Rose, supra note 78 at 716.39Of particular concern is the over-simplification that any multiple-user system willinevitably lead to destruction of the resource. Various authors have focused on thepositive and rational economic aspects of common ownership of natural resources andthe numerous and successful examples of common property across cultures andthroughout history as well as into the present day. 82 Generally the key to a successfulcommon property regime is some form of restriction of access or limitation of entry aswell as some form of coordinated management." Distinctions are therefore drawnbetween "open access resources" (which have no property rights attached to them)"and "common property", which is a limited access, and generally managed resource, "and Hardin's theory is confined to "open access resources" with no management scheme.Public trust resources which would clearly fall into this definition of "common property"include fisheries, public lands and parks.As indicated in Part I of this Chapter, many natural resources are seen as ill-suited forSee : Stevenson, supra note 80 and his discussion of the centuries old system of theSwiss grazing commons, which continues to this day and, D.W. Bromley, ed., MakingThe Commons Work - Theory, Practice and Policy (San Francisco, California : Institutefor Contemporary Studies, 1992) which provides 8 different studies of common propertyregimes around the world.Stevenson, ibid. at 2-3.Stevenson, ibid. at 8 defines an "open access resource" as a "depletable, fugitiveresource characterized by rivalry in exploitation; it is subject to use by any person whohas the capability and desire to enter into harvest or extraction of it; and its extractionresults in symmetric or asymmetric negative externalities."Stevenson, ibid., and D.W. Bromley, "The Commons, Property and Common-PropertyRegimes" in Bromley, supra at 3, at 3-4 and 11-14.40private appropriation, they are somehow "special" and public in nature. Interestingly, thisview is also mirrored in some of the economics literature. Stevenson argues that :It is important to recognize that common property [as defined above] mightprovide a solution to the open access problem, because certain resourcecharacteristics or social situations may require a common property solution,whereas a private property solution might fail. Consider a fishery, a ground wateraquifer, or certain wide-ranging wildlife. How do we vest property rights in suchnatural resources ? Short of committing them to a sole owner, which may becompletely incompatible with optimal firm size, it is impossible. The resourcesthemselves cannot be physically divided up into individual units. Clearly, if theseresources are to be exploited, multiple users must perform the job. To avoid theundesirable results of open access, some type of common property solution mustbe found. Thus, the physical characteristics of the natural resource sometimesdictate a common property solution. 86Accordingly, it appears that "common property" is not only recognized as a "special"category, but also, contrary to Hardin's theory, it can have positive economicconsequences. Rose argues that in addition to purely private property and governmentcontrolled private property (controlled by government because of market failure), thereis a third category of "inherently public property" . 87 She argues that this third categoryof property existed because collective public rights in certain property was the "optimalalternative" . 88 Collective property rights in public trust resources such as roads andnavigable waterways promoted commerce through returns to scale (greater value throughgreater participation)" and protection from the dangers of privatization such as holdouts86 Stevenson, ibid. at 4.87 Supra note 78 at 720.88 Ibid. at 721.89 Ibid. at 766-769.41and monopolies.'Accordingly, although this summary of economic treatment of common property has beensomewhat brief and simplistic, it is clear that the notion that certain resources are"special" and public in nature is an interdisciplinary one, being recognized at both lawand economics.ConclusionEnglish courtrooms did not echo to the resounding declaration of a public trust.However, it is clear that the public rights of navigation and fishing and the public rightsconcerning highways were regarded as "special" at English common law. The specialnature of the public rights is particularly evident with regard to the public rights ofnavigation and fishing, but also can be seen in the courts' treatment of the public trustconcerning highways. It was undoubtedly the distinctive features of these public rights,(in particular the guardianship obligations of the Crown) together with the division of titleto resources into the jus publicum and the jus privatum that led the American andCanadian courts confidently to assert a public trust.' Ibid. at 749-750.42CHAPTER TWOTHE DEVELOPMENT OF THE PUBLIC TRUST IN THE UNITED STATES IntroductionThe public rights with respect to navigation, fishing, the foreshore and highways cameashore in the New World as public trust rights. American courts had no hesitation indeclaring a public trust over navigation, fishing, the foreshore and highways based ontheir review of English common law. American judges were neither reticent aboutchanging the common law to suit American jurisdictional and geographical needs norfearful of adjusting the doctrine to meet changing social values. Although revitalized byProfessor Joseph Sax in 1970,' the American public trust has been dynamic since itsinception.The history of the public trust in the United States is one of dramatic expansion andremarkable adaptability. The public trust has been described as "one of the most flexibleand innovative mechanisms of United States environmental law" 2 and the public usesto which tidelands are subject as "sufficiently flexible to encompass changing publicneeds. In administering the trust the state is not burdened with an outmoded classificationfavouring one mode of utilization over another."' Part I of this Chapter explores the1 Sax, supra note 1 Ch. 1.2 Nanda & Ris, supra note 1 Ch.1 at 292.3 Marks v. Whitney 491 P. 2d 374 (1971) at 380.43initial reception and recognition of the doctrine into American law. Part II focuses on theapplication of the public trust to navigable waters and the foreshore, and explores themodern extension of traditional trust purposes to embrace ecological and aesthetic valuesand the preservation of trust lands in their natural state. Part III considers the applicationof the public trust to highways and the nineteenth century redefining of the trust tofacilitate economic development.The application of the public trust doctrine to wild places and wild animals hasexperienced a chequered history in the United States. Part IV explores the common lawfoundations for a public trust over parks and wildlife and seeks to highlight theinconsistencies inherent in adopting an ecosystemic approach to water based trustresources while denying public trust recognition to parks and wildlife.Part I - Reception of the Public Trust Doctrine Into American LawAfter the American Revolution, the individual states acquired sovereign status andinherited all the rights of the English Crown within their borders. With the adoption ofthe common law, the state legislatures also inherited the responsibilities of the EnglishCrown as trustee over trust property. 4 New states to the Union obtained the same rightsand responsibilities on the basis of the "equal footing doctrine", which accords equalstatus to all states in the Union : Pollards Lessee v. Hagan 44 U.S. (3 How) 212 229(1845).4 Selvin, supra note 1 Ch. 1 at 1405.44The reception of the public trust from common law into American law is summarized inShively v. Bowlby 152 US 1, 38 L. ED 331, 14 S Ct 548 (1894) as follows :At common law, the title and dominion in lands flowed by the tide water werein the King for the benefit of the nation ... Upon the American Revolution, theserights, charged with a like trust, were vested in the original States within theirrespective borders, subject to the rights surrendered by the Constitution of theUnited States ... The new States admitted into the Union since the adoption of theConstitution have the same rights as the original States in the tide waters, and inthe lands under them within their respective jurisdictions. 5The landmark American public trust case is however, Illinois Central Railroad v. Illinois146 U.S. 387 (1892). In that case, the Illinois state legislature sought, inter alia, torepeal an extensive grant of submerged lands in Lake Michigan, in fee simple, to theIllinois Central Railroad Company. In delivering the judgment of the court, Mr JusticeField noted that the State had placed under the control of the railroad company nearly allthe submerged lands of the Chicago harbour and that the company could "manage andpractically control the harbour of Chicago, not simply for its own purpose as a railroadcorporation, but for its own profit generally." 6In holding that the State was not competent to make such a grant, Field J. stated :[T]he State holds the title to the lands under Lake Michigan, within its limits, inthe same manner that the State holds title to soils under tide water, by thecommon law ... But it is a title different in character from that which the State5 152 U.S. 1 at 57. See also Martin v. Waddell 41 U.S. (16 Pet.) 367 (1842) whichoutlines the position with respect to the original 13 States. Upon the Revolution, thepeoples of each State became sovereign and in that character hold absolute right to allnavigable waters subject only to the rights since surrendered by the Constitution to thegeneral government.6 146 U.S. 387 at 451.45holds in lands intended for sale ... It is a title held in trust for the people of theState that they may enjoy the navigation of the waters, carry on commerceover them, and have liberty of fishing therein.Although Field J. recognised that the interests of the people could in many instances beimproved by the construction of wharves, piers etc. for which the State could grantparcels of the submerged lands, this was very different from the abdication by the Stateof control over navigable lands under an entire harbour.Such abdication is not consistent with the exercise of that trust which requires theState to preserve such waters for the use of the public. The trust devolving uponthe State for the public ... cannot be relinquished by a transfer of the property.The control of the State for the purposes of the trust can never be lost, exceptas to such parcels as are used in promoting interests of the public therein, orcan be disposed of without any substantial impairment of the public interestin the lands and waters remaining. 8Although described (and arguably recognised) as the "lodestar" in American public trustlaw 9 , and frequently cited in public trust cases, the decision has been criticised aslacking in authority.' However, what is clear from the case is the importance of thepublic interest in the resource. The public trust arose because the property in questionwas that :[I]n which the whole people are interested ... The harbour of Chicago is ofimmense value to the people of the State in the facilities it affords to its vast andconstantly increasing commerce; and the idea that its Legislature can deprive theState of control of its bed and waters and place the same in the hands of a privateIbid. at 452.Ibid. at 453.Sax, supra note 1 Ch.1 at 489.Lazarus, supra note 1 Ch.1 at 638-639 stating that it is "far from clear what source oflaw the Court was drawing upon to reach its result" and, "The court did not cite anyrelevant precedent in Illinois law to support the decision".46corporation created for a different purpose ... is a proposition that cannot bedefended."Part II - Waters : A Question of NavigabilityThe American courts were quick to declare a public trust with respect to navigable watersand tidelands. In describing the situation in England, the United States Supreme Courtin Martin v. Waddell 41 U.S. (16 Pet.) 367, 10 L.Ed. 366 (1842) referred to the"dominion and property in navigable waters being held by the king as a public trust". 12The situation in England was viewed as somewhat different to that in America becausetitle to navigable waters in England was held "by a single individual [the sovereign] intrust for the whole nation" . 13 In contrast, as mentioned earlier, in America, after theRevolution, the "people themselves became sovereign" and in that character, heldabsolute right to all navigable waters subject only to the rights since surrendered by theconstitution to the general government.'The traditional scope of the public trust was limited to tidal waters and lands exposed andcovered by the tide : National Audubon Soc. v. Superior Court ("Mono Lake" case) 658P. 2d 709 (Cal. 1983) at 719 and the traditional trust purposes were those of navigation,commerce and fishing : Marks v. Whitney, supra. However, the traditional scope of theii 146 U.S. 387 at 453 - 454.12 10 L.Ed. 366 (1842) at 411.13 Ibid.14 Ibid.47trust was changed as early as Illinois Central Railroad v. Illinois, supra to suit thedifferent American geographical and jurisdictional needs. Under English law, the publictrust applied to all navigable waters subject to the ebb and flow of the tide; tidal waterand navigable water being regarded as synonymous terms. However, this approach wasrejected by the court in Illinois Central as being "wholly inapplicable to our condition"because "[s]ome of our rivers are navigable for great distances above the flow of thetide"." Accordingly, the trust applied to waters that were navigable in fact.The inappropriateness of the English test for navigability was considered at some lengthin State v. Superior Court (Lyon) ,29 Cal. 3d 210, 625 P. 2d 239 (1981). At issue in thatcase was whether the State of California owned the lands under non-tidal, navigablelakes The decision was particularly significant because of the vast areas that would beaffected by the decision; some 4,000 miles of shoreline along 34 navigable lakes and 31navigable rivers. Mosk J., who delivered the majority judgment of the CalifornianSupreme Court, acknowledged that some of the original 13 states adopted the Englishrule (equating navigability with tidal flow) because most of their waters were tidal.Placing the common law rule in the Californian context he stated that "the English rulewas obviously inappropriate as the nation expanded westward, where there were greatrivers and lakes which were navigable in fact, even though they were not subject to theebb and flow of the tide." 1615 146 U.S. 387 (1892) at 435 and 436.16 625 P. 2d 239 (1981) at 244.48As in Illinois Central, the English rule was rejected, Mosk J. asserting that "our courtshave never adhered slavishly to common law doctrines if they were unsuitable to thecircumstances of our people" . 17Arguably one of the most significant extensions of the public trust doctrine occurred withthe Californian decision in Marks v. Whitney, supra. The case is important not for theresource in question (tidelands) but for the trust uses identified by the CalifornianSupreme Court. The Court acknowledged that the traditional trust purposes were thoseof navigation, commerce and fisheries and that these purpose had been interpreted asincluding the right to fish, hunt, bathe and swim, and boating and general recreation.However, in an enlightened recognition of the inter-relatedness of trust resources and thesurrounding environment, the Court went on to say :There is growing recognition that one of the most important public uses of thetidelands - a use encompassed within the tidelands trust - is the preservation ofthose lands in their natural state, so that they may serve as ecological units forscientific study, as open space, and as environments which provide food andhabitat for birds and marine life, and which favourably affect the scenery andclimate of the area.'Furthermore, the court concluded that it "is not necessary to here define precisely all thepublic uses which encumber tidelands", thus providing for further extensions of the trustin the future.17 Ibid.18 491 P. 2d 374 (1971) at 380.49The decision set in motion a series of Californian decisions which not only recognise butactively advocate the importance of trust resources as part of an ecosystem. Thisapproach is particularly evident in State v. Superior Court (Lyon), supra and State v.Superior Court (Fogarty) 29 Cal. 3d 240, 625 P. 2d 256 (1981). In Lyon's case, theCourt described the type of lands involved in the case as a "resource which is fastdisappearing in California; they are of great importance for the ecology, and for therecreational needs of the state." 19 Citing Berkeley (City of) v. Superior Court 26 Cal.3d 515, 606 P. 2d 362 (1980), the Court confidently asserts that the purpose ofpreserving the property in its natural state is a valid trust purpose. 20In Fogarty 's case, Mosk J. (who again delivered the majority judgment) develops thistheme even further. Aside from the question of estoppel, the issues were the same asthose raised in Lyon's case. In his judgment, Mosk J. expands upon his comments inLyon's case that preserving the property in its natural state is a valid trust purpose. Ina remarkable passage, which could have been extracted from Equinox magazine, henoted:The shorezone is a fragile and complex resource. It provides the environmentnecessary for the survival of numerous types of fish ... birds ... and many otherspecies of wildlife and plants. These areas are ideally suited for scientific study,since they provide a gene pool for the preservation of biological diversity. Inaddition, the shorezone in its natural condition is essential to the maintenance ofgood water quality, and the vegetation acts as a buffer against floods and erosion.19 625 P. 2d 239 (1981) at 242.20 Ibid. at 248 and 250.50The close relationship of the life forms in the shorezone to one another andto the condition of the bed of the stream or lake, the delicate balance amongthem, and the adverse effects of reclamation and development of these areashave been documented in numerous studies and reports. 21In recognising "the urgent need to prevent deterioration and disappearance of this fragileresource", Mosk J. introduces another innovative idea, that the State can limit public useof the resource in areas which are endangered by overuse.' This suggestion, that publicaccess to public trust resources can be restricted as part of the State's obligations infulfilling the trust is a major development. Historically, the public trust has beenperceived as a means of ensuring a right of access to certain public trust resources forvarious public purposes.' Furthermore, as discussed in Chapter One, the public'srights to trust resources are seen as so fundamental, they are preserved even after longperiods of non-use.'625 P. 2d 256 (1981) at 259.Ibid. at 260.Dunning, supra note 42 Ch.1 at 519. For a further extension of the public access theme,see also Blumm, supra, note 42 Ch.1 at 579-580: "the public trust doctrine'soverarching thrust is one of public access, either to the trust resources themselves or todecision makers with authority to allocate trust property. This public access theme makesthe doctrine a democratizing force by (1) preventing monopolization of trust resourcesand (2) promoting natural resource decision making that involves and is accountable tothe public." For an extensive discussion of the function of the courts in the public trustarea as one of democratization, see Sax, supra, note 1 Ch. 1.See also W.H. Rodgers, Jr. Environmental Law, vol. 1, (St. Paul, Minnesota : WestPublishing Co., 1986) at 161-162 for a brief discussion of the public trust "both to defyand combat the tragedy of the commons". Rodgers cites at 162 various case examplesof the state introducing use limits, closures and restraints "to enhance the commons, notdegrade it".51While critics could point to the absence of any direct authority cited in Fogarty's caseto support the view that a state could restrict access as part of its trust obligations, thisargument is a logical extension of the notion that trust resources are interrelated, and thatpreservation of trust property in its natural state is a valid trust purpose.Marks v. Whitney, Lyon's case and Fogarty's case laid the foundation for the CalifornianSupreme Court's decision in National Audubon Society v. Superior Court (the "MonoLake" case), supra. In that case the Court had to consider whether the public trustprotected navigable waters from harm caused by diversion of non-navigable tributaries.The issue arose because the Department of Water and Power of the City of Los Angeleshad been appropriating (under permit) nearly the entire flow of four of the five streamsthat flowed into Mono Lake. While there was no real dispute concerning the adverseeffect these diversions had caused, there was much disagreement as to the effect of bothfuture diversions and the continuing effect of past diversions. Furthermore, the Court wasrequired to consider the interplay between two conflicting systems of legal thought; theCalifornian water rights system and the public trust doctrine.In delivering the majority judgment (with which Mosk J. concurred), Brossard J. reflectsthe Court's earlier concerns with ecological questions. At the outset, he notes that "thereseems little doubt that both the scenic beauty and the ecological values of Mono Lake areimperiled" and reference is made to various reports on the effect of the diversions on the52ecology of the lake 25 Although acknowledging that "Mono Lake is a scenic andecological treasure of national significance" 26 , the Court stresses that in view of theincreasing demands of the state for water, the "state must have the power to grant non-vested usufructuary rights to appropriate water even if diversions harm public trustuses". 27 However, before doing so, the effects of the diversions on public trust usesmust be considered, and an attempt made "so far as feasible, to avoid or minimize anyharm to those interests." 28 In contrast, in the case before the Court, the diversion wascommenced without any consideration of the impact upon the public trust.In considering the background and history of the litigation, the Court reviews thecompeting evidence of the parties as to the effects of future diversions on Mono Lake.This fairly detailed review of matters such as increasing salinity, the threats to migratoryand local birds and the potential problems to humans from airborne silt, is implicitly aform of guideline to the State of the matters it should be taking into account whenconsidering the effects of the diversion on public trust uses. Thus, the State is requiredto look beyond the reduction in water level in Mono Lake and consider the broaderecological ramifications of such a reduction.25 658 P.2d 709 (Cal., 1983) at 711 and 714-716.26 Ibid. at 712.27 Ibid. at 712.28 Ibid.53Another significant feature of the case is the further extension of public trust purposes.Once again, the adaptability of the trust is stressed; "[t]he objective of the public trusthas evolved in tandem with the changing public perception of the values and uses ofwaterways." 29Significantly, no doubt relying on Marks v. Whitney to which the Court refers, the valuesclaimed by the plaintiffs are not the traditional trust purposes of navigation, commerceor fishing.The principal values plaintiffs seek to protect, however, are recreational andecological - the scenic views of the lake and its shore, the purity of the air, andthe use of the lake for nesting and feeding by birds. Under Marks v. Whitney ...it is clear that protection of these values is among the purposes of the publictrust.3°The Mono Lake case removes any doubt that (at least in California) public trust purposesin waters protected by the trust encompass ecological values. How then, does the Courtseek to reconcile these increasingly broader values with the growing need for morewater? In addition to the initial investigation the State must conduct to ascertain the effectof the diversion upon the public trust, the State has a duty to exercise "continuoussupervision and control over the navigable waters of the state and the lands underlyingthose waters." 31 This supervision is required because "parties acquiring rights in trustproperty generally hold those rights subject to the trust, and can assert no right to use29 Ibid. at 719.30 Ibid.31 Ibid. at 712.54 those rights in a manner harmful to the trust."'Importantly, the State's power as administrator of the public trust extends beyond meresupervision; it is a dynamic duty, one responsive to changes in public knowledge andneeds." A grant may be revoked, or the trust invoked against lands previously thoughtfree of the trust.[T]he state is not confined by past allocation decisions which may be incorrect inlight of current knowledge or inconsistent with current needs.The state accordingly has the power to reconsider allocation decisions eventhough those decisions were made after due consideration of their effect on thepublic trust. The case for reconsidering a particular decision, however, is evenstronger when that decision failed to weigh and consider public trust uses.In summary, the application of the public trust to waters in the United States hasexpanded markedly from its English common law roots. Not only does the trust applyto non-tidal navigable waters, it also applies to non-navigable tributaries to navigablewaters, to tidelands which have been granted to private parties and filled," and the32 Ibid. at 721.33 See for example : City of Milwaukee v. State 193 Wis. 423 at 449, 214 N.W. 820 at 830(1927), "The trust reposed in the state is not a passive trust; it is governmental, active andadministrative ... the trust, being both active and administrative requires the law makingbody ... not only to preserve the trust, but to promote it". Similar comments are madein Save Ourselves, Inc. v. Louisiana Envtl Control Cmsn 452 So. 2d 1152 (La 1984) andDistrict of Columbia v. Air Florida, Inc. 750 F.2d 1077 at 1083, (D.C. Cir. 1984), "Ithas evolved from a primarily negative restraint on states' ability to alienate trust landsinto a source of positive state duties."34 Ibid. at 728.35 Berkeley (City of) v. Superior Court of Alameda County 26 Cal. 3d 515, 606 P. 2d 362(1980).55shorezone of non-tidal navigable lakes.' The purposes or uses of the trust haveexpanded even more dramatically. From traditional purposes of navigation, commerceand fishing, the trust now embraces a broad range of recreational purposes, thepreservation of trust resources in their natural state and ecological values. The state'sobligations in fulfilling the trust also may include the power to exclude access to trustresources in areas endangered by overuse.Part HI - HighwaysAs mentioned in Chapter One, there was no clear expression of a public trust overhighways at English common law, although some cases did refer to the municipalcorporations or highway authorities as "guardians of the road". However, despite theabsence of a clear English pronouncement of a public trust, American courts confidentlydeclared that a municipal corporation was trustee of city streets on behalf of thepublic.' For example, in People v. Kerr 27 N.Y. 188 (N.Y. App.Div. 1862), 37 Barb.357 the New York Court of Appeals in determining that the construction of railroads incertain New York city streets would not constitute a public nuisance, stressed that theCity of New York was seised in fee of the land in all of the streets in trust, to keep theState v. Superior Court of Placer County 29 Cal. 3d 240, 625 P. 2d 256 (1981). Fora detailed summary and case list of the resources protected by the public trust, seeRodgers, Environmental Law, supra note 24 at 158-160.Although the comparison between the public right of navigation and the public rightsconcerning highways is a frequent one, going back as far as Hale, I am indebted toSelvin, supra, note 1 Ch.1 for alerting me initially to the possibility of a public trust overhighways, and to the American cases on point. See also Lazarus, supra note 1 Ch.1 at640-641.56same open and used as streets.The city of New York takes and holds the fee of the streets which have beenopened under the statute referred to, in trust, that they should be kept open andused as streets and for that only. This is a trust for the benefit of the public notof the adjacent proprietors alone, nor of the inhabitants or citizens of New Yorkalone, but of the whole people.'Similarly, in Story v. N. Elevated Railway Co. 90 N.Y. 122 (1882), (applied in Lahrv. Metropolitan Elevated Railway Co. 104 N.Y. 268 (1887)), the court affirmed that landthat had been dedicated for city streets was held by the city on trust for the public. Thecourt stated that although New York City held title to the city streets, "It is held, not asprivate property but in trust for public use" : Kellinger v. Forty-Second Street RailwayCo. 50 N.Y. 206 (1872)."It is important to mention however, that the public trust over city streets recognised inPeople v. Kerr, supra and Story's case, supra, has a legislative base.' By an act of38 27 N.Y. 188 (N.Y. App.Div. 1862) at 198-199. See also : Milhau v. Sharp 27 N.Y.611, 15 Barb. 193 (N.Y. App. Div. 1853) In referring to a municipal corporation'spowers over city streets, the court in Milhau stated at 622 "Those powers were givento the corporation as a trust, to be held and exercised for the benefit of the public fromtime to time, as occasion might require, and they could neither be delegated to others,nor effectually abridged by any action of the corporate authorities".39 90 N.Y. 122 (1882) at 159.40 This is specifically recognised in both cases : People v. Kerr 27 N.Y. 188 (1862) at190, 197 and 212; Story v. N.Y. Elevated Railway Co. 90 N.Y. 122 (1882) at 156-158.571813 41 it was declared that the "mayor, aldermen and commonalty of the city of NewYork shall be seised of the lands taken for streets" and that the streets were to be heldin trust and left open for streets.'However, it appears that the legislation may have been merely declaratory of thecommon law and at the very least would apply, regardless of the legislation, to landgranted or dedicated for public streets. In People v. Kerr, supra, Emot J. stresses thatbecause the municipal corporation is a public authority and holds property by adelegation of sovereign power, "[w]hatever right of domain or enjoyment the municipalbody possesses by such a title are of the nature of public and not private property"."In the same case, Wright J. acknowledges that although the "effect and object of the actof 1813, in relation to the streets in question, were to establish a public trust for thebenefit of the whole people", 44 he recognises that the municipal corporations have stoodas trustees with respect to city streets since 1793. 4541 The Act appears to have been entitled "An act to reduce several laws relating to the cityof New York into one act", and to belong to a series of Street Opening Acts of 1691,1787 and 1801: Story's case, supra at 156.42 Story's case, supra at 157. With respect to the trust obligation, the Act provided : "Intrust nevertheless that the same be appropriated and left open for or as part of a publicstreet, avenue, square or place forever, in like manner as the other public streets in thesaid city are, or of right ought to be" : Story's case, supra at 157.43 27 N.Y. 188 (1862) at 203, and see his comments at 199-200.44 Ibid. at 212.45 Ibid., Wright J. stating that, "The character which the corporation has uniformlysustained has been that of trustee for the public. It was as such trustee that the State, in1793, conveyed to it, all its title, estate and interest in such street." Church CJ makes58The early American case law concerning city streets reflects both the broader pressurewhich a growing population and economy and increased technology placed on public trustresources and, the remarkably flexible and adaptable nature of the public trust doctrine.The public trust doctrine was not reduced to an archaic legal doctrine with the expansionof modern cities, it grew to embrace advances in transportation technology and publicsanitation. 46 Improvements to the health and economic development of cities wereupheld even though such advances frequently involved the diversion of public trustresources to private companies. Selvin refers to "extraordinary grants of privilege" 'to railroad companies, waterfront development companies, individual riparian proprietorsand the early utility companies all made in the name of public interest; "that publicinterest being synonymous with the economic development and growth of the urbanareas" . 48However, despite the generosity of these grants, Selvin does identify "clearly articulatedlimits" on the power of the state legislature to alienate trust resources. In particular,similar comments in Kellinger v. Forty-Second Street Railway Co. 50 N.Y. 206 (1872)at 208. While recognising that a statutory trust was expressly created in 1813 withrespect to streets, he clearly recognises that a trust existed prior to that date, and that itarose for a variety of reasons : "The corporation of the city of New York has acquiredby grant, dedication or confiscation the title in fee to the land on which the streets arelaid, but the title thus vested is held not as private property, but in trust for public use,and such as was acquired under the act of 1813 is by that act expressly declared to beheld in trust for the purpose of maintaining public streets."46 Selvin, supra, note 1 Ch.1 at 1417-1419.47 Ibid. at 1421.48 Ibid.59although the state could alienate title to trust properties, it could not abdicate regulatorycontrol over those properties. 49Selvin concedes that the extension of the public trust doctrine to private ownership oftrust resources went way beyond the scope of the public rights envisaged by Hale.However, in summarizing the application of the public trust doctrine in the United States,she argues it was this redefining of the "public interest" which ensured the continuingexistence of the public trust in an era of fundamental change :Nineteenth century jurists saw the trust doctrine as a pliable one; the courtdetermined that the legitimate uses of trust property could expand with technologyand changing political and economic needs. The "public good" might often bestbe served by the private development of trust property - perhaps by a railroad orpipeline company - even if that development disrupted the traditional public usesof the property. This adaptability saved the trust doctrine from becoming anartifact of Lord Hale's time.'As mentioned in Part II of this Chapter, the "public interest" is now being redefined toreflect growing public concern about the environment and the need for preservation andconservation of precious and diminishing natural resources.Ibid. , at 1421-1422. See similar comments at 1412.Ibid. , at 1422. Lazarus, supra note 1 Ch.1 at 641 also refers to the utilization of thepublic trust concept to promote economic development. In addition to cases concerningcity streets, he refers to the use of the doctrine by Californian courts to facilitate accessby growing cities to water. He remarks that "the traditional trust doctrine concept in theUnited States became as much a legal basis for economic expansion as for resourceprotection."60Part IV - Parks and Wildlife : To Be Or Not To Be Within The Public TrustIn view of the expansive scope of trust purposes discussed earlier with respect tonavigable waters, and especially the emphasis placed on ecological values, it would seema matter of course that parks and wildlife would be protected public trust resources intheir own right. As Hunter remarks in relation to land :There is no inherent reason however, why the public trust doctrine as expoundedin Marks should not protect all ecologically important lands ... If one of thepurposes of the public trust is to protect the land's ecological integrity, thenecology should be relevant to defining which lands are subject to the trust. Thoselands associated with particularly significant or scarce ecological resourceswarrant stewardship on behalf of the public and should be granted protection. 51However, the approach of the American courts to wild places and wildlife has beensomewhat disjointed and disappointing. Most importantly, the courts have failed to keepstep with the developments in California concerning the ecological values of trustresources. Nonetheless, as this section will seek to establish, the foundations exist atAmerican common law for the public trust to be applied to both parks and wildlife. 52D.B. Hunter, "An Ecological Perspective on Property : A Call for Judicial Protectionof the Public's Interest in Environmentally Critical Resources" (1988) 12 H.E.L.R. 311at 374. For a similar call for a more ecological approach to resource allocation inconnection with the public trust, see also : G.D.Meyers, "Variation on a Theme :Expanding the Public Trust Doctrine to Include Protection of Wildlife" (1989) 19 Envtl.L. 723; A. Rieser, "Ecological Preservation as a Public Property Right : An EmergingDoctrine in Search of a Theory" (1991) 15:2 H.E.L.R. 393 and H.Bader, "Antaeus andthe Public Trust Doctrine : A New Approach to Substantive Environmental Protectionin the Common Law" (1992) 19 B.C. Envtl. Aff. L. Rev. 749.Several commentators have queried the appropriateness of "extending" the public trustdoctrine to wildlife and parks. Dunning, supra note 42 Ch.1 remarks at 519, "Excitingas extension of the public trust doctrine to these new frontiers may be to many, it wouldbe well to acknowledge that the doctrine currently draws a great deal of strength andlegitimacy directly from its long historical link with navigable water. Much remains tobe done to make the public trust doctrine a truly effective tool to preserve public values61ParksAs early as 1912, the American courts could confidently assert that land which had beendedicated as an inner city public park was subject to a trust in favour of the people. InHigginson v. Slattery 212 Mass 583, 99 N.E. 523 (1912), the Court was called upon toconsider whether the City of Boston could be restrained from erecting a building in aninner city public park. The Court conducted an extensive review of earlier Americanauthorities, citing cases such as Holt v. City of Somerville 127 Mass. 408 at 411, wherethe court stated, " [t]he legal title became vested in the city not for its own use in acorporate capacity, but in perpetual trust for the use of all who at any time might enjoythe benefit of a public park." Likewise in Clark v. Waltham 128 Mass. 567 at 569, thecourt deciding that the city held "the park not for its own profit or emolument but for thedirect and immediate use of the public". Similarly, the Boston Common, which wasdedicated by its owners "for the common use of the inhabitants of Boston as a trainingfield and cow pasture" was subject to a trust. In Steele v. Boston 148 Mass. 578 at 580,the court concluded "the city holds the Common for the public benefit, and not for itsemolument, or as a source of revenue, and ... maintains the Common solely for thebenefit of the public". Interestingly, playgrounds and public shade trees acquired andmaintained by cities and towns were held to be analogous to inner city parks; "the townis not the owner of the playground in any ordinary sense. The property is held under thein navigable water and associated natural resources; consequently it might be best at thistime not to seek to extend the public trust doctrine to entirely new areas". See alsoLazarus, supra, note 1 Ch.1 especially at 687-691 and 710-713, for criticism of thepublic trust as a tool for promoting environmental protection and conservation.62statute solely for public use" : Kerr v. Brookline 208 Mass. 190, 94 N.E. 257.Although the Court in Higginson recognised that the public purpose of land may bechanged by law and devoted to some other public purpose, the legislation before theCourt did not show the required legislative intent. In a frequently cited passage, theCourt concluded :Land appropriated to one public use cannot be diverted to another inconsistentpublic use without plain and explicit legislation to that end ... The policy of thecommonwealth has been to add to the common law inviolability of parks expressprohibition against encroachment by buildings, highways, steam or streetrailways."A dominant theme evident in the case excerpts referred to in Higginson is that trust usesof parks do not extend to commercial enterprise or profit making activities; the city doesnot hold the park for its own "profit or emolument". This theme reappears throughoutthe American case law. For example, in Gould v. Greylock Reservation Commission 350Mass. 410, 215 N.E. 2d 114 (1966) the Court was called upon to invalidate, inter alia,a lease of 4,000 acres in Greylock State Reservation to Mount Greylock TramwayAuthority and to prohibit the Greylock Reservation Commission and the Authority fromproceeding with a scheme for the leased area for a ski resort, ski lifts and aerialtramway.Citing the passage in Higginson referred to earlier, the Court reviewed the relevant53 99 N.E. 523 (1912) at 527 - 528.63legislation. In concluding that the development proposal was not authorized by thelegislation, the Court referred to "one troublesome aspect" of the development project:This recreational scheme, in the profits of which Resort [Services Inc] is to share,is to compete with private recreational ventures of similar character. The profitsharing feature and some aspects of the project itself strongly suggest acommercial enterprise ... we find no express grant to the Authority of power topermit use of public lands and of the Authority's borrowed funds for what seems,in part at least, a commercial venture for private profit.'In contrast to the resounding affirmation of the importance of commerce in IllinoisCentral 55 , and the "expansion" of the public trust over city streets to embrace privateenterprise within the terms of the trust, discussed earlier, there seems to be a perceptionin these cases of "dirty money"; that commercial enterprise and parks are mutuallyexclusive, at least in the absence of clear legislative intent to the contrary. Interestingly,a similar view is expressed in the Mono Lake case, supra about trust resources generally.Although recognising that the public trust doctrine does not prevent the state fromchoosing between trust uses, the Court comments as follows:Most decisions and commentators assume that "trust uses" relate to uses andactivities in the vicinity of the lake, stream, or tidal reach at issue ... The tidelandcases make this point clear; after City of Berkeley v. Superior Court ... no onecould contend that the state could grant tidelands free of the trust merely becausethe grant served some public purposes, such as increasing tax revenues, orbecause the grantee might put the property to a commercial use. 56Thus "increasing tax revenues" or putting the property to a "commercial use" will notdisplace the trust, because such public purposes are not seen as synonymous with public54 215 N.E. 2d 114 (1966) at 126.55 "The harbour of Chicago is of immense value to the people of the State in the facilitiesit affords to its vast and constantly increasing commerce", 146 U.S. 387 (1892) at 454.56 658 P. 2d 709 (Cal. 1983) at 723-724.64trust purposes. The point is worth emphasizing because the view that trust purposesdo not embrace commercial enterprise is consistent with the greater importance nowbeing placed on ecological values and indicative of the public trust evolving to meetchanging public values concerning trust resources. Furthermore, if ecological values areso important, the call for parks to be subject to the public trust becomes even stronger.The Redwood National Park litigation affirmed the application of the public trust doctrineto national parks in the United States. In a series of three cases, 58 the United StatesDistrict Court was asked to decide whether the Secretary of the Interior had takenreasonable steps to protect the resources of Redwood Park, and if not, whether his failureto do so had been arbitrary, capricious or an abuse of discretion. The Park had beenestablished in 1968 pursuant to the Redwood National Park Act 16 U.S.C.A. Secs. 79a -79j "to preserve significant examples of primeval coastal redwood ... forests and thestreams and seashores with which they are associated for purposes of public inspiration,enjoyment, and scientific study."57 The test in Illinois Central supra is a twofold test : The control of the State for thepurposes of the trust will not be lost unless (1) the grant is used in promoting theinterests of the public, or (2) there is no substantial impairment of the public interest inthe land and waters remaining; 146 U.S. 387 at 453.58 Sierra Club v. Department of Interior 376 F. Supp. 90 (1974) (whether the Sierra Club'sclaim disclosed a cause of action); Sierra Club v. Department of Interior 398 F. Supp284 (1975) (whether the Secretary of the Interior had satisfied his statutory and publictrust duty in relation to Redwood Park); and Sierra Club v. Department of Interior 424F. Supp. 172 (1976) (reviewing whether the Department had complied with its duties).65In the first case, Sierra Club v. Department of Interior 376 F. Supp. 90 (1974), the Courtheld that the Secretary had both "general fiduciary obligations" under the National ParkService Organic Act 16 U.S.C. 59 and specific statutory duties under the RedwoodNational Park Act. In describing the Secretary's fiduciary duty, the Court refers toKnight v. United Land Association 142 U.S. 161, 12 S.Ct 258; 35 L.Ed. 974 (1891) :The Secretary [of the Department of the Interior] is the guardian of the people ofthe United States over the public lands. The obligations of his oath of officeoblige him to see that the law is carried out and that none of the public domainis wasted or disposed of to a party not entitled to it. 60Interestingly, particularly in the Canadian context, this "trust responsibility" is describedas analogous to the trust relationship of the Secretary toward the Indians. The similaritybetween the public trust doctrine and the fiduciary obligation of the Canadian andprovincial governments to First Nations peoples is considered in greater detail in ChapterFour.In Sierra Club v. Department of the Interior 398 F. Supp. 284 (1975), the secondRedwood Park case, the Court reaffirms that the National Park Service Organic Act59 Section 1 of that Act provides for the creation of the National Park Service in theDepartment of the Interior. The Service is required to "promote and regulate the use ofFederal areas known as national parks, monuments and reservations ... by such meansand measures as conform to the fundamental purpose of said parks, monuments andreservations, which purpose is to conserve the scenery and the natural and historicobjects and the wild life therein and to provide for the enjoyment of the same in suchmanner and by such means as will leave them unimpaired for the enjoyment of futuregenerations." This section is remarkably similar to section 4 of the Canadian NationalParks Act R.S.C. 1970, c. N-13, as amended.60 142 U.S. 161 (1891) at 181.66imposes a trust :[T]here is, in addition to these specific powers [under the Redwood National ParkAct], a general trust duty imposed upon the National Park Service, Departmentof the Interior, by the National Park System Act ... to conserve scenery andnatural and historic objects and wildlife ... and to provide for the same in suchmanner and by such means as will leave them unimpaired for the enjoyment offuture generations. 61Reviewing the actions of the Secretary, the Court concluded that the defendants had"unreasonably, arbitrarily and in abuse of discretion ... failed, refused and neglected"to perform the duties imposed on them by the National Park System Act and the RedwoodNational Park Act and ordered that within a reasonable time, the defendants exercisetheir powers and perform the duties imposed upon them to afford full protection to thePark from adverse consequences of logging and provide the plaintiffs with a progressreport upon compliance with the order, or, in lieu of compliance, a report as to why theorder has not been complied with. 62Unfortunately, the application of the public trust doctrine to parks since the RedwoodPark litigation has been somewhat inconsistent. In Sierra Club v. Andrus 487 F.Supp.443 (D.D.C. 1980) a different U.S. District Court concluded that the National ParkService Organic Act did not impose any special trustee duties upon the Secretary of theInterior. Although the plaintiff relied on the three Redwood Park cases, the Court does61 398 F.Supp. 284 (1975) at 287.62 In the third Redwood Park case, Sierra Club v. Department of the Interior 424 F.Supp172 (N.D. Cal. 1976) the Court reviewed the actions taken by the Secretary andconcluded that the Department of the Interior had complied with the Court's earlierorder.67not refer to these cases in the judgment. Instead the Court focuses on the Report of theSenate Committee on Energy and Natural Resources (which approved an amendment tothe National Park Service Organic Act in 1978) to support its conclusions that thestatutory duties imposed upon the Secretary under the National Park Service Organic Actcomprise all the responsibilities which the Secretary must faithfully discharge.'There is however, further American authority to support the view that the public trustapplies to parks at common law. In Paepcke v. Public Building Cmsn of Chicago 46 III.2d 230, 263 N.E. 2d 11 (1970) a group of Chicago citizens brought an action to preventthe Public Building Commission and several other City of Chicago authorities fromimplementing plans to construct a school and recreational facilities in two parks. Thereasoning of the Court is somewhat curious; in dismissing the action the Court held thatthe owners of property in the vicinity of the parks had no private property right ofcontinuation of park use. Why the Court speaks in terms of private property rights is notquite clear, unless referring to the public trust. However, what is clear is that the Courtaccepted without question that the parks were trust properties. In this case, the ChicagoGeneral Assembly had dedicated the lands in question for use as public parks andThe court stated at 449, "By asserting an explicit statutory standard [in the 1978amendment] 'as the basis of any judicial resolution of Park management issues',Congress eliminated 'trust' notions in National Park System management." Onecommentator has criticised this decision, describing the conclusions as "difficult tosupport". He remarks that "The language of the 1978 amendment is simply not clear; ifanything, it seems implicitly to impose trust obligations on the National Park Service byreferring to the "high public value and integrity of the National Park System." : C.F.Wilkinson, "The Public Trust in Public Land Law" (1980) 14 U.C.L.D.L.Rev. 269 at292.68accordingly, "[s]uch a dedication having been made by the sovereign, the agenciescreated by it hold the properties in trust for the uses and purposes specified and for thebenefit of the public." "The dedication, while creating a trust, was not irrevocable however. Trust lands couldbe diverted by explicit and open action of the legislature. In this case, the legislation wassufficiently broad and comprehensive to allow the diversion proposed.A similar clash of interests occurred in Clements v. Chicago Park District 96 Ill. 2d 26,449 N.E. 2d 81 (1983). In that case, a group of citizens objected to the development ofa golf driving range in a Chicago city park. Although the reasoning of the majority asto why construction of the driving range was a valid park purpose is fairly weak, theCourt clearly assumed that the park was subject to the public trust. Similarly, in anotherIllinois case, Wade v. Kramer 459 N.E. 2d 1052 (Ill. App. 4 Dist. 1984), although notupholding the trust in regard to the construction of a bridge and connecting highway, theCourt clearly accepted that the conservation area, wildlife and archaeological remains tobe affected by the construction were subject to the public trust.WildlifeThe protection of wildlife under the public trust has experienced an equally chequeredhistory. It has been argued that the public trust in its original form contemplated the64 263 N.E. 2d 11 (1970) at 15.69protection of wildlife within its scope. 65 In Arnold v. Mundy 6 N.J.L. 1 (1821) at 17,Chief Justice Kirkpatrick remarked, in terms reminiscent of The Institutes of Justinian,that :[C]ommon property according to writers upon the law of nature and of nations,and upon the civil law, are the air, the running water, the sea, the fish and thewild beasts. But inasmuch as things in which a sort of transient usufructuarypossession only can be had ; and inasmuch as the title to them and to the soil bywhich they are supported, and to which they are appurtenant, cannot well,according to the common law notion of title, be vested in all the people; thereforethe wisdom of that law has placed it in the hands of the sovereign power, to beheld, protected and regulated for the common use and benefit."'Early American cases held wildlife to be subject to the ownership of the state in trust forthe people. In LaCoste v. Dept of Conservation 263 U.S. 545 (1924), citing the case ofGeer v. Connecticut 161 U.S.519 (1896), the Court stated that "[t]he wild animals withinits borders are, so far as capable of ownership, owned by the State in its sovereigncapacity for the benefit of all its people." 67 Similarly in Fields v. Wilson 186 Ore. 491,207 P. 2d 153 (1949) at 156 :65 Meyers, supra, note 51 at 724. Meyers at 729 draws an analogy between water andwildlife to support his argument that wildlife should be subject to a public trust. He notesthat (1) in its natural state, water and wildlife can not be owned but are subject tousufructuary rights only and (2) ownership of wildlife, like water, has historically beentreated as an aspect of sovereignty. For a discussion of the public trust doctrine as ameans to save endangered species, in particular fish, see S.W. Reed, "Fish Gotta Swim: Establishing Legal Rights to Instream Flows Through the Endangered Species Act andthe Public Trust Doctrine" (1991-1992) 28 Idaho L. Rev. 645.66 6 N.J.L. 1 (1821) at 71.67 263 U.S. 545 (1924) at 549. See also State Department of Environment Protection v.Jersey Central Power & Light Co. 125 N.J. Super. 97, 308 A. 2d 671 (1973). The courtstated at 673, "wild animals, including fish, within the jurisdiction of a State as far asthey are capable of ownership, are included in the public trust". Significantly, the courtheld that the public trust could be damaged by pollution.70Beavers are animals ferae naturae, "and while in a state of freedom theirownership, so far as a right of property can be asserted, is in the state, not as aproprietor, but in its sovereign capacity for the benefit of and in trust for itspeople in common" : Monroe v. Withycombe 84 Or. 328 at 334.However, in Hughes v. Oklahoma 441 U.S. 322, 60 L.Ed 2d 250, 99 S Ct 1727 (1979),the United States Supreme Court expressly overruled Geer v. Connecticut with respectto commerce clause challenges to statutory regulation of natural resources. Stateownership of wildlife was described as a "19th century legal fiction". 68 Rehnquist Jdissenting, Burger J concurring with his dissent, argued that the concept expressed bythe "ownership" doctrine in Geer was not obsolete :[T]he ownership language of Geer and similar cases is simply a shorthand wayof describing a State's substantial interest in preserving and regulating theexploitation of the fish and game and other natural resources within its boundariesfor the benefit of its citizens. 69Reviewing the majority judgment, Rehnquist J. notes that the majority may not haveentirely overruled the principles in Geer. He refers to the fact that the majorityspecifically recognise that:1. the State's interest in conservation and protection of wild animals is alegitimate social purpose; and2. overruling Geer does not leave the State powerless to protect and conserve68 60 L.Ed 2d 250 (1979) at 261. This wording is taken from the case of Douglas v.Seacoast Products Inc. 431 U.S. 265 cited in the judgment69 Ibid. at 265.71wildlife within its borders. 70The comments of Mr Justice Rehnquist reflect the views of the United States SupremeCourt in the earlier decisions of Baldwin v. Fish & Game Cmsn of Montana 436 U.S.371, 56 L.Ed 2d 354, 98 S Ct 1852 (1978) and Douglas v. Seacoast Products Inc. 431U.S. 265, 52 L.Ed. 2d 304, 97 S Ct 1740 (1977). In Baldwin, Blackmun J., whodelivered the majority judgment, disagreed that Geer had no remaining vitality :The fact that the State's control over wildlife is not exclusive and absolute in theface of federal regulation and certain federally protected interests does not compelthe conclusion that it is meaningless in their absence. 71Burger J., who concurred with the majority in Baldwin, commented that although theGeer doctrine is "admittedly a legal anachronism of sorts" 72 the doctrine is notcompletely obsolete, rather, "[i]t manifests the State's special interest in regulating andpreserving wildlife for the benefit of its citizens." 73 The actual extent of State controlover wildlife is not, however, really explained in any detail in these recent SupremeCourt cases, although Burger J. in Baldwin does identify certain limitations on the State'spower. For example, a State is prohibited from offending the Fourteenth Amendment orrestricting use of or access to wildlife in a way that burdens interstate commerce. '70 Ibid.71 56 L.Ed. 2d 354 (1978) at 367.72 Ibid. at 371.73 Ibid.74 Ibid. at 371-372.72Until Re Steuart Transportation Company 495 F. Supp. 38 (1980) it was unclear whetheror not the public trust still applied to wildlife. In overruling Geer had the United StatesSupreme Court abolished not merely state ownership, but the public trust as well ? Atissue in Re Steuart was whether or not the Federal government and the government ofVirginia could sue a vessel owner for damage caused to migratory waterfowl, claimingstatutory penalties and cleanup costs.The United States District Court accepted Steuart's argument that the State of Virginiadid not own the waterfowl in question; the "authority in support of this position is clearand voluminous." 75 However, the Court noted that :[M]any of the cases refuting a state's claim to ownership of resources turned uponprinciples of federalism and pre-emption by federal legislation of state controlmeasures. Neither of these principles is applicable to the current issue before thisCourt. 76The Court then commented that neither the Federal nor Virginian government soughtrecovery for the value of the waterfowl based upon a claimed ownership interest. Rather,recovery was sought under either, or both, the public trust doctrine and the doctrine ofparens patriae.' The Court concluded that both of these doctrines supported the claims495 F.Supp. 38 (1980) at 39.Ibid. at 39-40.Under the doctrine of parens patriae, the "state acts to protect a quasi-sovereign interestwhere no individual cause of action would lie" : ibid. at 40. Here, as no individualcitizen could seek recovery for the waterfowl, and "the state certainly has a sovereigninterest in preserving wildlife resources", ibid., the claim was supportable under thedoctrine. See also Maine v. M/V Tamano 357 F.Supp. 1097 (D.C. Me 1973) which heldthat a state may sue for injury to its water and wildlife under a parens patriae theory.73for the waterfowl. With respect to the public trust doctrine, the Court stated :Under the public trust doctrine, the State of Virginia and the United States havethe right and the duty to protect and preserve the public's interest in naturalwildlife resources. Such right does not derive from ownership of the resourcesbut from a duty owing to the people. See eg Toomer v. Witsell 334 U.S. 385... (upholding state's right "to conserve or utilize its resources on behalf of itscitizens.") 78Unfortunately, the Court does not elaborate further on the application of the public trustdoctrine to wildlife. What is the extent of the "duty owing to the people" ? And, evenmore importantly given the Court's earlier comments concerning principles of federalism,how does the public trust interact with federal law ?Subsequent judicial consideration of Re Steuart has failed to clarify matters. Rather, thecase has been cited as one of the few examples where the public trust doctrine has beenheld to apply to the Federal government. ' The case has however, been accepted asauthority for the proposition that a public trust applies to wildlife. In U.S. v. BurlingtonNthn Railroad Co. 710 F.Supp. 1286 (D.Neb. 1989) on a motion for partial summaryjudgment, the U.S. District Court (Nebraska) held that the United States had the rightto recover damages for lost wildlife in a waterfowl production area. Referring to theRedwood Park litigation supra, Knight v. United Land Association, supra and Re Steuart,the Court concluded :In view of this trust position, and its accompanying obligations, it appears that theUnited States, much like the States in their parens patriae capacities ... can78 Ibid. at 40.79 See for example, District of Columbia v. Air Florida, Inc. 750 F.2d 1077 (1984).74maintain an action to recover for damages to public lands and the naturalresources on them, which in this action would encompass the destroyed wildlife.80The application of the public trust at common law to parks and wildlife has ebbed andflowed. Although there is common law authority for the continued application of the trustto these resources, the extent of the doctrine's application is still somewhat uncertain.Furthermore, the view that the National Park Service Organic Act imposes a trust on theSecretary and the Department of the Interior has not been universally accepted.The fact that there is still so much uncertainty as to whether the public trust applies toparks and wildlife in the United States is surprising in view of the expansive andevolving list of trust purposes with regard to tidelands, navigable waters and non-navigable tributaries to navigable waters. Furthermore, given that the rationale of thepublic trust is now increasingly viewed as one of preservation and conservation ofinvaluable resources, 81 there is no reason for the exclusion of wild places and wild710 F.Supp. 1286 (1989) at 1287. See also: Owsichek v. State Guide Licensing 763 P.2d488 (Alaska 1988), note 12 at 495. Referring to Hughes v. Oklahoma, supra, the Courtstated "Nothing in the opinion however, indicated any retreat from the state's public trustduty discussed in Geer". Re Steuart was cited as further support for the view that thepublic trust still existed independently of state ownership of wildlife.Support for this view can however be found in America as early as 1909. In the Reportof the National Conservation Commission S.Doc. No. 676, 60th Cong., 2d Sess. 109(1909), Secretary Holmes stated the basis of the trust as follows : "The resources whichhave required ages for their accumulation to the intrinsic value and quality of whichhuman agency has not contributed, which there are no known substitutes, must serve asthe welfare of the nation. In the highest sense, therefore, they should be regarded asin... II75things from the public trust. In Morse v. Oregon Div of State Lands 34 Or. App. 853,581 P. 2d 520 (1978), affirmed 285 Or. 197, 590 P.2d 709 (1979), the Oregon Courtof Appeals gave the following reasons for the existence of the trust :The severe restriction upon the power of the state as trustee to modify waterresources is predicated not only upon the importance of the public use of suchwaters and lands but upon the exhaustible and irreplaceable nature of theresources and its fundamental importance to our environment. Theseresources, after all, can only be spent once. Therefore, the law has historicallyand consistently recognised that rivers and estuaries once destroyed or diminishedmay never be restored to the public and, accordingly, has required the highestdegree of protection from the public trustee. 82ConclusionThe growth of the public trust doctrine in the United States has been quite remarkable.The key to the continued existence of the doctrine, despite significant social, industrialand economic change has undoubtedly been the adaptability and flexibility of the trust;what one commentator has described as its almost "chameleon-like" nature." Selvin,in a detailed historical review of the public trust doctrine in American law and economicpolicy, emphasizes how the doctrine has mirrored fundamental shifts in societal andjudicial values." As discussed in Part IV of this Chapter, the public trust doctrine hasembraced partial private ownership of trust resources as a means of fostering economicdevelopment. Now, however, as considered in Part III, the trust is being used to facilitateproperty held in trust for the use of the race rather than for a single generationCohen, supra, note 19 Ch.l at 388 n. 4.82 34 Or. App. 853 at 860.83 Blumm, supra note 42 Ch.1 at 579.84 Selvin, supra note 1 Ch.l.76preservation and conservation of trust resources - the "public" values of the public trusthave shifted yet again. Selvin identifies this shift in direction as follows :State and federal judges during the nineteenth century typically resorted to thetrust concept to uphold governmental or private behaviour that they deemed to bein "the public interest" and throughout the century they consistently defined thatpublic interest to be largely synonymous with regulated economic growth. Inrecent years, however, the courts have begun to invoke the public trust doctrineto uphold private or governmental actions as being in the "best interests of thepublic" when those actions alleviate pollution, or reserve scenic, historical, orother natural resources for public recreation, scientific study, or preservation orinsure greater public access to these resources. 8585 Ibid. at 1438.77CHAPTER THREEDEVELOPMENT OF THE PUBLIC TRUST DOCTRINEAT CANADIAN COMMON LAWIntroductionAlthough it appears that the only explicit reference to a public trust at English commonlaw is that by Best J. in Blundell v. Catterall, supra, as with the early American courts,Canadian courts confidently asserted that there was a public trust with respect to thepublic rights of navigation and fishing and the public rights concerning highways. Thisrecognition was based largely on the English cases discussed in Chapter One. In contrasthowever, to the explosion of the public trust doctrine and public trust authors in theUnited States, the Canadian common law public trust has been largely dormant. This mayhave been due in part to problems with lack of legal standing for environmentalplaintiffs. Given the relaxation of standing requirements by the Canadian Supreme Courtin Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607, 33 D.L.R. (4th) 321(considered in Chapter Four), standing should no longer pose a bather to common lawactions vindicating the public trust.Likewise, Canadian academic interest in the subject has been virtually non-existent. Asmentioned in the Introduction, this paper is probably the first academic recognition of apublic trust doctrine at Canadian common law. The sole journal article on the public trustdoctrine in Canada is less than optimistic about the development of the doctrine at78Canadian common law.' Although Hunt notes that "the public right of fishing andnavigation is well established in Canada, even though its scope is fairly narrow" , 2 sheconcludes "it appears that there have not been any successful attempts to broaden thescope of the right or to have the Crown characterized as a trustee in relation to publicrights" . 3 She does not mention the three cases cited in this Chapter identifying a trustwith respect to navigation and fishing and makes no mention of the public trust overhighways.Part I of this Chapter explores the three early Canadian cases which recognize a publictrust over the public rights of navigation and fishing as well as the Canadian public rightsof navigation and fishing generally. Unfortunately, despite this early recognition of thepublic trust, the Canadian public trust concerning navigation and fishing has been inhibernation since the late nineteenth century. The public rights of navigation and fishingmay have been recognized consistently by Canadian courts, but the public trust withrespect to those rights has been idle, quietly lying in some back eddy, awaiting discoveryby a perseverant environmental law student. Importantly, however, the distinctivefeatures of the English public rights of navigation and fishing identified in Chapter Onewhich led American and Canadian courts to confidently assert a public trust are mirroredin Canadian law, thereby providing a solid foundation to revitalize the public trust with1 Hunt, supra note 2 Ch. 1.2 Ibid. at 166.3 Ibid. at 167.79respect to these two public rights.Part II considers the public rights with respect to highways. Interestingly, the strongestmodern expression of the public trust doctrine in Canada is that concerning highways.Although the public trust over highways is unlikely to be expanded to embrace the publicrights of navigation and fishing, or a broader public trust over resources which are"special" in nature, the public trust over highways is at least modern day evidence of thepublic trust doctrine at Canadian common law.The fact that the public trust is at various stages of development in Canada should notpreclude its re-awakening. The Canadian affirmation of the distinctive features of thepublic rights of navigation and fishing, coupled with an initial express recognition of thepublic trust have served to lay the foundations for a modern Canadian common lawrevival of the public trust. The likely consequences of such a revival are considered inChapter Four.Part I - Navigation and FishingAs with the American courts, Canadian courts were quick to recognize a public trust withrespect to the public rights of navigation and fishing. That recognition was however, bothlimited in scope and fairly shortlived.80The earliest Canadian articulation of the public trust with respect to navigation andfishing appears to have been in R. v. Meyers (1853) 3 U.C.C.P. 305. In that case,concerning a nuisance action for obstruction of a navigable river, Macauley J. conductsan extensive review of the English authorities, (covering approximately 39 pages) toascertain what constitutes a "navigable river" at common law. Referring to this judgmentand the English authorities, McLean J. states that :Without therefore attempting to find in English cases any distinct authorities toguide us in the decision of questions relating to streams at the distance of somethousand miles from the influence of the tides, I have no hesitation in stating itas my opinion that the great lakes and the streams which are in fact navigable,and which empty into them in these provinces, must be regarded as vested in thecrown in trust for the public uses for which nature intended them -that thecrown, as the guardian of public rights, is entitled to prosecute and to cause theremoval of any obstacles which obstruct the exercise of public right, and cannotby force of its prerogative curtail or grant that which it is bound to protect andpreserve for public use. 4In R. v. Lord (1864) 1 P.E.I. 245, in determining whether the erection of a weir on theforeshore below the ordinary high water mark for the purposes of collecting seaweedconstituted a nuisance, Peters J. considered the scope of the public rights of navigationand piscary (fishing):The right of property in the sea and the soil at the bottom, and also the landbetween high and low marks, is in the Sovereign, but, though the King has theproperty, the people have the necessary use. But these rights of use are only therights of piscary and navigation ... With respect to these public rights, viz.navigation and fishery, the King is, in fact, nothing more than a trustee of thepublic and has no authority to obstruct, or grant to others, any right to obstruct,or abridge the public in the free enjoyment of them. But subject to these rights4 (1853) 3 U.C.C.P. 305 at 357. R. v. Meyers was considered in Dunstan v. Hells GateEnterprises Ltd (1987) 20 B.C.L.R. (2d) 29 (C.A.) but only with respect to thededication of highways.81the King may grant the soil of the shore and all private rights of the Crown withit. 5Similarly, in the Canadian Supreme Court decision of R. v. Robertson (1882) 6 S.C.R.52, in deciding, inter alia, whether an exclusive right of fishing existed in part of theMiramichi River, Ritchie C.J. was in no doubt that the Crown was the trustee of thepublic right of fishing. Having earlier affirmed the Irish decision of Murphy v. Ryan(1868) IR 2 C.L. 143, 6, he concluded that :[T]he ungranted lands in the province of New Brunswick, being in the crown forthe benefit of the people of New Brunswick, the exclusive right to fish followsas an incident, and is in the crown as trustee for the benefit of the people ofthe province exclusively.'Strong J. in R. v. Robertson, supra, also describes the Crown as trustee of the public.In considering whether exclusive rights in fisheries could be granted in large navigablenon-tidal rivers, he remarks that this is "a question the solution of which must dependon whether the beds of such rivers are vested in the Crown in right of the Dominion, notas part of its domain, but as trustee for the public, or in the owners of the adjacentlands, inasmuch as the right of fishing would in the first case be in the public as of5 (1864) 1 P.E.I. 245 at 257. R. v. Lord was considered in North Saanich (District) v.Murray [1974] 1 W.W.R. 179, but there was no mention of the public trust.6 "[T]he right of fishing in the sea, and in its arms and estuaries, and in its tidal waters,wherever it ebbs and flows, is held by the common law to be publici juris, and to belongto all the subjects of the Crown - the soil of the sea, and its arms and estuaries, and tidalwaters being vested in the Sovereign as a trustee for the public" : Murphy v. Ryan(1868) IR 2 C.L. 143 at 149.7 (1882) 6 S.C.R. 52 at 126.82common right, but in the second vested in the riparian proprietors"! While he does notanswer this question, it is clear that if title was vested in the Crown, it would be astrustee.Accordingly, as these three early Canadian cases indicate, Canadian common law hasrecognised and affirmed a public trust doctrine with respect to the public rights ofnavigation and fishing. Furthermore, it appears that the public trust with respect to thepublic right of fishing may be imposed on the Crown in its capacity as parens patriae. 9However, aside from these early cases, and the cases concerning highways (consideredin greater detail in Part II) there appears to have been no specific endorsement ormention of the public trust in subsequent cases. Attempts to extend the public trust toprovincial and national parks in Canada have not led to judicial pronouncements on thedoctrine. In Green v. Ontario (1973) 2 O.R. 396 (Ont.H.C.), considered in ChapterFour, the plaintiff's attempt to assert a statutory public trust pursuant to the ProvincialParks Act 1° was summarily rejected by the court. The public trust doctrine was raised8 Ibid. at 138. See also his comments at 132 concerning American public trust cases.9 See : Mann v. The Queen (1 June 1990), Vancouver A881092 (B.C.S.C.) and again (25April, 1991) Vancouver A881092 (B.C.S.C.) (application to strike out entire amendedstatement of claim dismissed); and G.C. La Forest, Water Law in Canada - The AtlanticProvinces (Information Canada : Ottawa, 1973) at 197. Although LaForest cites the caseof McNeill v. Jones (1894) 26 N.S.R. 299 in support of this proposition, I am unable tofind any argument or statement to this effect in the case. The parens patriae doctrine hasbeen raised also as a basis for the public trust doctrine in America with regard to wildlife- see Ch.2, Wildlife.10 R.S.O. 1970, c. 371.83also in litigation concerning logging in Wood Buffalo National Park, but as the case wassettled there was no consideration of whether a public trust existed under the NationalParks Act." The most recent judicial consideration of the public trust doctrine appearsto be the unreported decision of Mann v. The Queen. 12 However, as the decision onlyinvolved a chambers application, there was little consideration of the public trustdoctrine. This case is considered in greater detail in Chapter Four.What then is the nature and scope of the rights of the Canadian public trust with respectto fishing and navigation ? Has the public trust been whittled away ? Although there maynot have been subsequent judicial affirmation of a public trust with respect to navigationand fishing, it is clear that the distinctive features of the English public rights ofnavigation and fishing considered in Chapter One are recognised also at Canadian law.A grantee from the Crown takes subject to the public rights of navigation and fishing,incidental rights are encompassed in the public rights, legislation is required to extinguishthe rights and, the Crown has a duty of guardianship, protection and preservation. Thepublic trust over navigation and fishing may not have been continuously upheld, but thespecial nature of the public rights of navigation and fishing has certainly been affirmed.As argued in Chapter Four, the fact that these distinctive features have been recognizedby Canadian courts in addition to the initial recognition of the public trust doctrine, laysthe foundations for a modern common law revival of the public trust doctrine in Canada.R.S.C. 1970, c. N-13, as amended.12 Supra, note 9.84Navigable WatersAlthough the early Canadian courts relied heavily on the English common law to definethe perimeters of the public rights of navigation and fishing, the courts were prepared torecognise that some English common law principles could be inappropriate in a Canadiancontext. As mentioned earlier, at English common law, the test of navigability was basedprimarily on tidal flow, and the soil of rivers so far as the tide flowed and reflowed wasprima facie in the Crown : Malcomson v. O'Dea (1863) 10 HL Cas 593. Title to non-tidal rivers was generally in the adjoining private riparian owners, as their title extendedby presumption to the centre of the waterway in question. As stated in Bristow v.Cormican (1878) 3 App Cas 641 ,"[i]t is clearly and uniformly laid down in our books,that where the soil is covered by the water forming a river in which the tide does notflow, the soil does of common right belong to the owners of the adjoining land". 13Inland lakes, regardless of their size, were subject to private ownership also. In Johnstonv. O'Neill [1911] AC 552, the House of Lords held that no public right of eel fishingexisted in Lough Neagh. Although the lake was navigable in fact and, was the largestinland lake in the United Kingdom, covering an area of 150 square miles, because thelake was non-tidal, there was no public right of fishing. Lord McNaughten referred totwo "incontrovertible" propositions :1.^the Crown is not of common right entitled to the soil or waters of an13 (1878) 3 App Cas 641 at 665-666. See also : Lamb v. Newbiggin (1844) 1 Car. & Kir549 at 541 and Bickett v. Morris (1866) LR 1 Sc & Div 47 at 58.85inland non-tidal lake; and2.^no right exists in the public to fish in the waters of an inland non-tidallake.He further stressed that these principles apply regardless of the size of the lake, even ifthe lake in question is so large that it may be termed an inland sea!'In contrast, in both Canada and the United States where there was no prior history ofprivate Anglo-European ownership, the English test of navigability was graduallyrejected, mainly because it did not encompass the large rivers, which extended inland farbeyond the reaches of the tide and, the huge inland lakes Importantly, it was obviouslyseen as inappropriate that title to such resources be vested in private ownership, ratherthan the public or the Crown on behalf of the public!' In holding that the St Lawrenceriver was a navigable river, the court in Dixon v. Snetsinger (1873) 23 U.C.C.P. 235[1911] AC 552 at 577-578. Although there is no general English common law right ofpublic navigation or fishing in navigable non-tidal waters, a public right of navigation canbe established by (1) immemorial usage or custom : Orr Ewing v. Colquhoun (1877) 2App Cas 839; Bourke v. Davis (1889) 44 Ch D 100 at 120; (2) Act of Parliament : R.v. Betts (1850) 16 QB 1022, or by order made under the authority of an Act ofParliament; or (3) by express grant or dedication by the owner of the soil of the river orlake : Halsbury's Laws of England, vol.49, supra, note 44 Ch.1 at para 910.In Gage v. Bates (1858) 7 U.C.C.P. 116 at 119-120, Richards I noted that if the Englishtest of navigability were adopted in Canada, "then our great lakes and rivers flowing forhundreds or miles, which in many places along their course are the boundary andcommon highway between this province and a foreign country, must be considered assubject to the incidents of small inland streams ... and subject to exclusive rights offishing, etc, which may be granted by the Crown to the proprietors of adjacent land, orother rights which there vest in the owners of the soil adjacent to the shores of thesestreams" .86(C.A.), applying Parker v. Elliott (1852) 1 U.C.C.P. 470, Gage v. Bates (1858) 7U. C . C .P. 116 and R. v. Meyers, supra, stated :[T]his rule of the common law as to navigable rivers, which when applied torivers in an insular country such as England may be perfectly consistent withreason and common sense, but which is neither conformable to reason or commonsense when applied to such a river as the St. Lawrence, which is not only ahighway dividing the territories of different nations for the greater part of itsextent, but which traverses more than half a continent, and with a little assistancefrom art is navigable for ... more than 1,500 miles above tide waters, and whichin its course forms lakes more than 100 miles in width". 16Similarly, in Fort George Lumber Co. v. Grand Trunk Pacific Railway (1915) 9 W.W.R.17, Clement J. remarked :There is, however, a strong current of authority in Canadian cases that the ruleof the common law of England denying the existence of a public right ofnavigation in non-tidal waters is not the law of Canada even in those provinceswhich have adopted the common law of England as the basis of theirjurisprudence. 17The rule that a public right of navigation exists over waters which are navigable in fact,(1873) 23 U.C.C.P. 235 at 245. See also Gage v. Bates (1858) 7 U.C.C.P. 116,especially at 119-120; Parker v. Elliott (1852) 1 U.C.C.P. 470, especially at 488-489("either the rule of the common law of England has been, by common and universalinterpretation, most reasonably held not to apply to the lakes and great rivers of Canada,or else the whole of the lands of riparian proprietors ... must be taken to extend nofurther, and to leave the land covered with water ungranted and the property of theCrown").(1915) 9 W.W.R. 17 at 18-19. See also: R. v. Roberston (1882) 6 S.C.R. 52, especiallyat 129-132 (English rule "is not applicable to the great rivers of this continent");Keewatin Power Co. v. Kenora (Town of) (1906) 13 O.L.R. 237, especially at 249-255.To the contrary, ie affirming the English rule, see : Fares v. R. [1929] Ex.C.R. 144,especially at 151-152 and, Keewatin Power Co. v. Kenora (Town of) (1908) 16 O.L.R.184 (C.A.), varying the decision of Anglin J in Keewatin, supra. In McFeeley v. B.C.Electric Railway Co. [1918] 1 W.W.R. 339, applying the English test of navigability,the court held that False Creek as an arm of the sea is a tidal water which is prima facieevidence of the right of the public to navigate it.87regardless of whether they are tidal or non-tidal, has been re-affirmed recently in Friendsof the Oldman River v. Canada (Minister of Transport and Minister of Fisheries andOceans) [1992] 1 S.C.R. 3, 2 W.W.R. 193 18Given that Canadian courts were prepared to modify the common law to suit Canadianrequirements, what other alterations, if any, were made to the public rights of navigationand fishing ? Generally, the scope of the public rights remained much the same andmirrored the distinctive features of the rights at English common law.Legislation Required to Extinguish the Public RightsAs in England, the public rights of navigation and fishing were seen as so fundamentalthat legislation was required to extinguish or diminish the right. In Wood v. Esson (1886)9 S.C.R. 239 it was held that the Crown could not, without legislative sanction, grantthe right to obstruct navigation Similarly, in Saint John Harbour Commissioners & A-Gof Canada v. Eastern Coal Docks, Ltd (1935) 8 M.P.R. 499 in considering whether theright of navigation in the St. John River had been removed, Richards J. stated :A grant from the Crown, therefore, of the soil of a tidal river below high watermark does not take away the public right of navigation. This may be done,however, and can only be done, by Act of Parliament (or by authority ofParliament). 19[1992] 1 S.C.R. 3 at 54-55, citing A.G. v. Johnson (1819) 2 Wils. Ch. 87, 37 E.R. 240and, Wood v. Esson (1884) 9 S.C.R. 239.(1935) 8 M.P.R. 499 at 508. See also : Isherwood v. Ontario & Minnesota Power Co.(1911) 2 O.W.N. 651; McNeil v. Jones (1894) 26 N.S.R. 299; R. v. The Woldingham[1925] Ex.C.R. 85, especially at 87 ("It is of course beyond question that the right of88Furthermore, it appears that the legislation must be clear and explicit to extinguish ordiminish the right of navigation : Nicholson v. Moran (1949) 4 D.L.R. 571, citingChampion & White v. Vancouver [1918] 1 W.W.R. 216. In Nicholson's case, the courtheld that because section 7 of The Navigable Waters Protection Act 20 was a permissivesection only, it could not render legal an obstruction of navigable water.Grantee Takes Subject to Public RightsAs with English common law, because the Crown could not alienate the public rights intidal lands, any grantee of the Crown took subject to those rights - a "grantee of theforeshore holds it subject to the jus publicum of navigation and fishing" : Tweedie v. R.(1915) 52 S.C.R. 197. 21 Similarly, in Donnelly v. Vroom (1907) 40 N.S.R. 585, inrejecting a claim for an exclusive right of fishery, the court stated :The right of navigation, as well as that of fishing, is paramount to the rights ofa mere owner of the soil. In other words, the public right of navigation andfishing is not, and cannot be, affected nor diminished by any transfer of the soilof an arm of the sea, or its shores, to an individual. 22navigation can only be extinguished by Act of Parliament"); and Fort George LumberCo. v. Grand Trunk Pacific Railway (1915) 9 W.W.R. 17, especially at 18 ("TheCrown's ownership of the bed or soil underlying tidal waters is subject to a paramountright in the public to navigate such waters and to fish therein ... and the Crown withoutParliament cannot derogate from those rights").R.S.C. 1927, c.140.(1915) 52 S.C.R. 197 at 214. See also : Brown v. Reed (1874) 15 N.B.R. 206 at 210 ("itis abundantly clear by all the authorities that a grant of land between the high and lowwater mark (this subject matter of grant being jus privatum in the sovereign) must besubject to the jus publicum, or public right of King and people"); and McNeil v. Jones(1894) 26 N.S.R. 299.202122 (1907) 40 N.S.R. 585 at 592.89Incidental RightsIncidental rights were recognised and protected also - the ownership of the bed of the sea"is subject to the servitudes arising from the public rights of navigation and fishing andthe rights concomitant with and subsidiary to them" : Capital City Canning Co. v. AngloBritish Columbia Packaging Co. (1905) 11 B.C.R. 333. 23 ; the right of navigation is notconfined to the right of navigating and passing along navigable waters : R. v. Lord(1864) 1 P.E.I. 245 at 249. Although the scope of ancillary rights recognised at Canadiancommon law seems somewhat narrower than those rights upheld by English courts,incidental rights such as the right to moor or anchor : Nicholson v. Moran (1949) 4D.L.R. 571; Saint John Harbour Commissioners & A.G. of Canada v. Eastern CoalDocks, Ltd (1935) 8 M.P.R. 499 and the right to collect seaweed : R. v. Lord supra,have been recognised. With respect to the right of fishing, the right of the public to fishon the sea shore between the high and low water marks includes the right to take shellfish : Donnelly v. Vroom (1907) 40 N.S.R. 585 at 591. However, where water coveringthe land of a private owner is navigable, regardless of whether or nor the public have theright to navigate in such water, the public is not entitled to hunt, shoot or fish within theprecincts of the private property under the guise of using the water for navigationpurposes : Rice Lake Fur Co. Ltd v. McAllister (1925) 56 O.L.R. 440 and there is nocommon law right in the public to use the beach above high water mark for the purposes23 (1905) 11 B.C.R. 333 at 339.90of fishing : Parker v. Elliott (1852) 1 U.C.C.P. 470 24Role and Duties of the CrownAlthough there are less authorities on point, it would appear that, as with the Englishpublic rights of navigation and fishing, the Crown has certain affirmative duties withrespect to those rights at Canadian law. Canadian courts have re-affirmed that theCrown's ownership of navigable waters cannot be used to derogate from or interfere withthe public rights of navigation and fishing.' A duty of guardianship, protection andpreservation has been recognized also. In R. v. Meyers (1853) 3 U.C.C.P. 305(considered earlier as a public trust case), Macauley J. stated that, "the Crown, as theguardian of public rights, is entitled to prosecute and to cause the removal of anyobstacles which obstruct the exercise of public right, and cannot by force of itsprerogative curtail or grant that which it is bound to protect and preserve for publicuse" . 26The Public Rights as Either a Right of Way or a Property RightAs with the early English cases, comparisons are frequently made between the publicrights with respect to highways and the public right of navigation - "every public river24 Hunt, supra, note 2 Ch.1 also concludes that the scope of the public right of navigationand fishing is "fairly narrow". See generally her discussion of the Canadian cases at 164-167.25 See for example : Clarke v. Edmonton (City) [1930] S.C.R. 137, [1929] 4 D.L.R. 1010;Mclnsley v. Gilley (1907) 7 W.L.R. 22.26 (1853) 3 U.C.C.P. 305 at 357.91or stream is alta regia via (the king's highway)" : R. v. Meyers (1853) 3 U.C.C.P. 305at 318; "if the locus in quo is a public navigable river, then it is a public highway, andall her Majesty's subjects of common right may pass over it in boats and fish therein": Gage v. Bates (1858) 7 U.C.C.P. 116 at 121 and, in R. v. The Woldingham [1925]Ex.C.R. 85 at 89, "a river is a highway as a road is". However, the right of navigationis a public right, which is to be distinguished from a right of access to water by ariparian proprietor, which is a private right: Electrical Development Co. v. Ontario(Attorney General) (1917) 38 O.L.R. 383 (reversed on another point : [1919] A.C. 687,47 D.L.R. 10); Baldwin v. Chaplin (1915) 21 D.L.R. 846.In Stephens v. MacMillan (1954) O.R. 133, the Supreme Court of Ontario interprets thepublic rights with respect to highways and navigation very narrowly. Citing the Englishcase of Orr Ewing v. Colquhoun (1877) 2 App. Cas. 839, affirmed in Friends of theOldman River, supra, the court states that the right of navigation is not a right ofproperty, but a right of way and the "nature of the rights of the public in navigablewaters are the same or similar to the rights of the public in a highway". ' Thisapproach is somewhat strange given that the public rights of navigation and fishingclearly run with the land, as a grantee of tidal lands is bound by the public rights.Furthermore, if the public right of navigation is not a property right, why does the courtthen go on to describe the right as "paramount to any right that the Crown or a subject27 (1954) O.R. 133 at 143.92may have in navigable waters" ? 28In contrast to Stephens' case, other Canadian courts have described the public rights innavigable waters as a right of property. In R. v. Meyers (1853) 3 U.C.C.P. 305,Macauley J., citing various English authorities, refers throughout his judgment to a"public easement" in navigable waters.' In Parker v. Elliott (1852) 1 U.C.C.P. 470at 470, Macauley J. again refers to a public easement, commenting that the foreshore issubject to the public easements of navigation and fishing. Similarly, in Brown v. Reed(1874) 15 N.B.R. 206 (C.A.), Ritchie J. describes the public rights over the landbetween the high and low water marks as an "easement of passing and re-passing bothover the water and the land" 30 , and in Capital City Canning Co. v. Anglo BritishColumbia Packaging Co. (1905) 11 B.C.R. 333, Duff J. refers to "the servitudes arisingfrom the public rights of navigation and fishing and the rights concomitant with andsubsidiary to them".' However, in A-G of British Columbia v. A-G of Quebec [1914]A.C. 153, Viscount Haldane, who delivered the judgment of the court, stated that theright of fishing in tidal waters is not a right of property but a right equally open to all28 Ibid. at 146.29 (1853) 3 U.C.C.P. 305 at 320-322, 324 and 348.30 (1974) 15 N.B.R. 206 (C.A.) at 210. In support of this statement, Ritchie J cites theEnglish cases of A.G. v. Burridge (1822) 10 Price 350, 147 ER 335; A.G. v. Parmeter,Re Portsmouth Harbour (1811) 10 Price 378, 147 ER 345 and Colchester Corpn v.Brooke (1845) 7 Q.B. 339, 115 ER 58.31 (1905) 11 B.C.R. 333 at 339.93the public.'Part II - HighwaysDespite early recognition of a public trust with respect to navigable waters, the strongestCanadian expression of the public trust is that concerning highways. While the publictrust over highways in Canada is unlikely to be of significant benefit to environmentalistsseeking to re-assert the doctrine over navigable waters and other natural resources, itdoes provide a modern day example of a public trust over a public resource.As mentioned earlier, there was no clear expression of a public trust over highways atEnglish common law, although some cases did refer to the municipal corporations orhighway authorities as "guardians of the road". However, despite the absence of a clearEnglish pronouncement of the public trust, Canadian courts had no hesitation in declaringthat a municipal corporation was trustee of city streets on behalf of the public. TheCanadian Court of Queen's Bench in Sarnia (Town of) v. Great Western RailwayCompany (1861) 21 U. C .Q.B. 59, stated :The property vested in the municipality is a qualified property, to be held andexercised for the benefit of the whole body of a corporation ... [the municipality]may be said to hold the freehold, but then it is only as trustees for the public, andnot by virtue of any title which confers a right of exclusive possession."Town of Sarnia was affirmed by Lennox J. and Masten J. in Re J.F. Brown Co.Ltd. and32 [1914] A.C. 153 at 172.33 (1861) 21 U.C.Q.B. 59 at 62.94City of Toronto (1916) 36 O.L.R. 189, Lennox J. stating that, "It does not matter at allthat the soil and freehold of the streets is now vested in the municipalities. They havealways been and are still trustees for them for the public, and for specific limitedpurposes, that is for highway purposes alone". 34 In J.F.Brown, the court reviewed thedecision of the Official Arbitrator that the City of Toronto was liable to paycompensation to the respondents, J.F.Brown Co. Ltd, for the construction of publiclavatories under and on a city street adjacent to the respondents' department store. Therespondents alleged that the seepage, smoke and the misconduct of men using theconveniences had led to a reduction in business and therefore they should be compensatedby the municipal corporation pursuant to s. 325 of the Municipal Act 35 for injuriousaffection of their land.In rejecting the municipal corporation's argument that its powers with respect tohighways were equivalent to those of a private individual owner of land in fee simple,Masten J. considered both the relevant legislation and the common law, and concluded,"Nut neither here nor in England, during all the years that the local authorities haveowned the surface, has it ever been held that such municipal ownership is an absolutebeneficial ownership, identical with the rights of private ownership".' On the contrary,citing Town of Sarnia, supra, and Chavigny de la Chevrotiere v. Montreal (City of)34 (1916) 36 O.L.R. 189 at 203.35 R.S.O. 1914, c. 192.36 Ibid. at 227.95(1886) 12 App. Cas. 149 at 159 (considered later), he concluded that the corporation'stitle was a qualified property held by the corporation as trustee for the public. Withrespect to the Municipal Act, Masten J. stated:A consideration of the sections of the Municipal Act relating to highways (429 -486) confirms the view that the municipal corporation are trustees for all theKing's subjects of the highway so vested in them, and that it remains the right ofall such subjects to pass over the highway without obstruction, and that this rightis paramount and cannot be infringed, even by the municipal authority itself,except under express statutory powers.'Accordingly, both at common law and pursuant to the Municipal Act, municipalcorporations hold highways on trust for the public. The Municipal Act does not expresslyrefer to or create a trust, it merely specifies that municipal corporations hold title tohighways. The trust arises because such ownership has been held at common law to bea qualified ownership for the benefit of the public.'Canadian courts have consistently recognised a public trust over highways : Vancouver(City of) v. Burchill [1932] S.C.R. 620 at 625 ("The land-owner enjoys the absolute rightto exclude anyone and to do as he pleases upon his own property. It is idle to say thatthe municipality has no such rights upon its streets. It holds them as trustee for thepublic."); Big Point Club v. Lozon [1943] O.R. 491 at 495 ("Ownership of highways isIbid.Section 433 of the Municipal Act, which is expressly referred to by the court, providesthat "Unless otherwise expressly provided, the soil and freehold of every highway shallbe vested in the corporation or corporations of the municipality or municipalities, thecouncil or councils of which for the time being have jurisdiction over it under theprovisions of this Act". In J.F. Brown, supra, Masten J at 226 notes that the predecessorlegislation was to the same effect.96held by municipalities in trust for all such of the King's subjects as have occasion tomake use of them for lawful purposes, or in order to gain access to or egress fromadjacent lands"); and Re McKillop and City of Vancouver (1954) 11 W.W.R. (N.S.) 593(B.C.) at 597 ("A municipality holds its streets as trustee for the public")."However, it appears that the situation in Canada with respect to highways may differfrom that in England. In Octave Chavigny de la Chevrotiere v. Montreal (Cite de) (1886)12 App Cas 149, the Privy Council in affirming that a public trust applies to highwaysin Canada stated that :There is a distinction between the Canadian law and the law of this country as topublic highways. The Canadian law agrees rather with the law of Scotland, whichis founded on the civil law, namely, that when a street or road becomes a publichighway the soil of the road is vested in the Crown if there is no other publictrustee, or, if there is a corporate body that fills the position of trustee, then inthat corporate body in trust for public use.'As the public place at issue in the case had become a highway both at common law andby registration under the applicable legislation, the appellant's claim to resume privatepossession of such a public place was rejected.In contrast to the public trust with respect to navigable waters, the public trust overhighways has been recognised recently in Canada in W.A.W. Holdings Ltd v. Summer39 See also : Re Ottawa & Nepean (1910) 2 O.W.N. 480 at 483, "The highways are vestedin the Crown for the purpose and to the extent of enabling them to perform moreeffectually their duties to keep them in repair for the benefit of the public"; and, ReOgilvie Flour Mills Co. Ltd and Winnipeg [1927] 1 W.W.R. 833 at 845.40 (1886) 12 App. Cas. 149 at 159.97Village of Sundance Beach [1980] 1 W.W.R. 97 (Alta. Q.B.) and Calgary (City of) v.Cominco Ltd [1983] 2 W.W.R. 320.In W.A. W. Holdings Ltd, the primary issue was the scope of public access to certain roadallowances, which were under the control and management of a summer village whichhad been incorporated under the Municipal Government Act.' The applicant, the ownerof a new subdivision adjoining the summer village, sought permission from the villageto clear pedestrian pathways on the road allowances to facilitate access from the newsubdivision to the public beaches and waters of Pigeon Lake, fronting the village. Thevillage refused permission.Referring to Vancouver v. Burchill, supra; Big Point Club v. Lozon supra; Re J. F.Brown Co. Ltd. and Toronto and Ontario H.E.P.C. v. Grey (1924) 55 O.L.R. 339,Miller J held that the road allowances were held in trust by the village for the generalpublic. The fact that the summer village had taken over the management and control ofthe road allowances from the county did not preclude the recognition of a public trust.[W]hen the summer village took over management and control of the roadallowances it assumed the same obligations vis-a-vis the public that the countyhad regarding the said lands. When the county approved the original Housesubdivision application and took title to the various dedicated parcels of land, Ithink it is abundantly clear that it intended to hold the dedicated lands in trust toprotect the public's access, at convenient points, to the waters of Pigeon Lake.41 R.S.A. 1970, c. 246.98The summer village must manage and control the lands upon the same trust.'Although the public had access to the lake on roads at either end of the village, this was"no proper answer to the trust which the summer village assumed". ' While Miller J.recognized that the village council members were acting in what they perceived to be thebest interests of their constituents in attempting to preserve their current use andenjoyment of "their" part of the lake, he stated that "in so doing I think that they havetrammelled the rights of the public and have not fulfilled the trust which the summervillage assumed when it took over the control and management of these three roadallowances" . 44The decision in W.A. W. Holdings was reversed on appeal by the Alberta Court of Appealin Summer Village of Sundance Beach v. W.A.W. Holdings Ltd [1981] 1 W.W.R. 581.Harradence M.A., who delivered the judgment of the court, disagreed that the countytook the lands impressed with a trust and, also disagreed that the summer village "hadengrafted upon its control of the dedicated lands (ie the road allowances) the trustreferred to by the learned chambers judge". 45 Instead, the county "took the lands subject42 [1980] 1 W.W.R. 97 at 113. Although Miller J finds that the county intended to holdthe road allowances in trust, this has not been a pre-condition to the recognition of thetrust in the other Canadian cases he cites.43 ibid. at 116.44 Ibid.45 [1981] 1 W.W.R. 581 at 590.99to the duties imposed by statute" . 46 Likewise, the summer village, as an authorityincorporated under statute "would assume that authority subject only to whateverrestrictions were spelled out in the Act itself [the Municipal Government Act, R.S.A.1970, c. 264] or other legislation pertaining thereto."'Although Harradence JJ.A. refers to the cases cited by Miller J., he makes no attemptto reconcile those decisions with his assertion that the county was not under a trustobligation with respect to highways. He cites no authority in support of this propositionand, his denial of a trust is contrary to the decision of the Supreme Court of Canada inVancouver v. Burchill, supra.The anomalous nature of the Sundance Beach decision is recognised in Calgary (City of)v. Cominco, supra. After reviewing the various Canadian authorities mentioned earlier,Egbert J. states :From a reading of the above cases, it would seem to be firmly established that... municipal powers which relate to roadways are to be strictly construed. In theabsence of express statutory authority, a municipality is without power to obstructor authorize the obstruction of roadways, however beneficial the work leading tothe obstruction may be in a general sense. The municipality holds title to theroadways but it does so in trust for those who pass and re-pass over theroadways. 48However, in light of the decision in Sundance Beach, the court felt compelled to holdIbid.Ibid.[1983] 2 W.W.R. 320 (Alta. Q.B.) at 331.100that the position in Alberta is different to that in the other provinces. Acknowledging thatit was difficult to reconcile the decision in Sundance Beach with the Supreme Court ofCanada's decision in Vancouver (City of) v. Burchill, supra (where the court held thatmunicipalities held city streets as trustee for the public), Egbert J. sought to reconcile thetwo decisions by suggesting that "if there is a trust, it can only be exercised inaccordance with the duties imposed upon a council by statute."'In summary, it is clear that Canadian common law recognises a public trust overhighways. Although the position in Alberta is somewhat unclear, in other provinces suchas British Columbia, Ontario and Manitoba, municipal corporations hold title to localstreets and highways on trust for the public.Restrictions on ExtinguishmentIn addition to express recognition of a trust over highways, the distinctive features of thejus publicum with respect to highways recognised at English common law are recognisedalso at Canadian common law, especially the restriction on extinguishment. As withEnglish common law, the maxim "once a highway, always a highway applies". In Nashv. Glover (1876) 24 Gr. 219, affirmed in Niagara Navigation Co. v. Niagara (Town of)(1914) 31 O.L.R. 17, Big Point Club v. Lozon [1943] O.R. 491 and Dunstan v. HellsGate Enterprises Ltd (1985) 22 D.L.R. (4th) 568 (B.C.S.C.), the Ontario Court ofChancery held that despite possession by the plaintiff of an original road allowance for[1983] 2 W.W.R. 320 at 332.10140 years or more, the municipality could resume possession of the road and re-open it.Citing Regina v. Hunt (1865) 16 U.C.C.P. 145, the court noted that once a road hadacquired the legal title of a highway, the Crown could not, by grant of the soil andfreehold of the highway, deprive the public of their right to use the road. Although inthe present case, Vice-Chancellor Proudfoot found no intention on behalf of the Crownto grant the original road allowance to anyone, he stated that :[A]n original road allowance cannot be extinguished except by proceedings underthe Acts referred to; that a grant even by the Crown cannot extinguish it; that theright of the public remains in perpetuum, though it may lie dormant, it maybe revived, until steps under the Acts have killed it. 5°As with the public rights of navigation and fishing, the public rights concerning highwayswere seen as so fundamental, the Crown was incapable of extinguishing those rightswithout legislative authority. In Regina v. Hunt (1865) 16 U.C.C.P. 145, applied in Nashv. Glover, supra, the court held that once a road has once acquired the legal title of ahighway, it is not in the power of the Crown, by grant of the soil and freehold to aprivate person, to deprive the public of their right to use the road. Wilson J. concludedthat the cases "shew beyond all question that a public road laid out by a duly authorisedcrown surveyor ... cannot be altered afterwards by the crown, unless duly alteredaccording to the statute" . 5150 (1876) 24 Gr. 219 at 222. The court also referred to the case of Dawes v. Hawkins 8C.B.N.S. 878 in which Byles J stated "It is also an established maxim - once a highway,always a highway - for the public cannot release their rights, and there is no extinctivepresumption or prescription. The only methods of legally stopping a highway are, eitherby the old writ of quod damnum, or by proceedings before magistrates under thestatute."51 (1865) 16 U.C.C.P. 145 at 158.102Similarly, in Hydro-Electric Power Commission of Ontario v. Grey (County of) (1924)55 O.L.R. 339 the court stressed that the public rights with respect to highways couldbe extinguished only by legislation :It has long been recognised in the Courts of Ontario and England that the rightof the public to free passage along the King's highway is paramount, and cannotbe interfered with even by the Crown itself, but only by Parliament or theLegislature. 52Significantly, not just any legislation would suffice. To extinguish the public rights in ahighway, explicit legislation is required; the Act must "express such an intention inlanguage that is unmistakable". 53 In Hydro-Electric Power Commission of Ontario,supra, Masten J. emphasized that :[T]he right of the public in the King's highway has always been jealously guardedby the Courts and is not lightly to be interfered with. There is no question butthat the Legislature of Ontario can by statute, modify or abolish that right; but,if it is to be modified and the rights of the public curtailed or affected, the willof the Legislature must be unequivocally expressed.'These restrictions on extinguishment of the public rights with respect to highways re-affirm that public rights in "special" resources cannot be disposed of lightly by thegovernment. Other restrictions on government dealings with public trust resources areHydro-Electric Commission of Ontario v. Grey (County of) (1924) 55 O.L.R. 339 at 344.See also Nash v. Glover (1876) 24 Gr. 219 at 220, "there is no power in the executiveto extinguish an original road allowance, that the only mode by which that can beaccomplished is, the manner pointed out by the Act. The road allowances are perpetualuntil altered or extinguished by the proper legal authority."Hydro-Electric Power Commission, ibid. at 346.Ibid. at 344. See also : Code v. Jones & Town of Perth (1923) 54 O.L.R. 425 at 426,("There is no inherent right or authority in the municipality to place an obstruction uponthe highway, such right or authority must be expressly conferred by the Legislature");Big Point Club v. Lozon [1943] O.R. 491 at 496103considered in greater detail in Chapter Four.ConclusionThe public trust doctrine does form part of Canadian common law. Although the publictrust with respect to navigation and fishing has lain dormant since the late nineteenthcentury, the distinctive features of the English public rights of navigation and fishingwhich led to the initial American and Canadian assertion of a public trust exist also atCanadian common law. This re-affirmation of these distinctive features, together with theinitial recognition of a public trust over navigation and fishing have laid the foundationsfor a modern revival of the public trust doctrine in Canada. Canada already has onemodern example of the public trust with the public trust over highways. The time hasnow come for a re-awakening of the public trust doctrine with respect to naturalresources. The reasons for and the consequences of such a revival are considered inChapter Four.104CHAPTER FOURTHE CONSEQUENCES OF RECOGNITION OF THE PUBLIC TRUST DOCTRINEIntroductionHaving identified in Chapter Three that the public trust doctrine does exist at Canadiancommon law, albeit at various stages of development, two questions inevitably arise.First, what exactly is the public trust and, second, what are the consequences ofrecognition of the public trust doctrine at Canadian common law ?Despite the myriad American academic articles concerning the public trust, the academicsgenerally agree that the public trust doctrine defies precise description. Rodgerscomments that, "the public trust is resoundingly vague, obscure in origin and uncertainof purpose; it serves a variety of functions, mimics other doctrines, and for these reasonsis not easily researchable" I and Blumm remarks that "one of the reasons for thepopularity of the public trust is that it sometimes seems as if it's all things to allpeople" 2 . Part I of this Chapter attempts to define the nature of the doctrine, withparticular consideration of the public trust as a trust and, more broadly, as a fiduciaryobligation. The conclusion reached is that, at the very least, the public trust doctrineimposes a broad fiduciary obligation on government.Rodgers, supra, note 24 Ch.2 at 155.2 Blumm, supra note 42 Ch.1 at 575.105Part II considers the consequences that flow from recognition of the public trust. As thereare so few Canadian cases on the doctrine, aside from those concerning highways, theprimary focus is on the American authorities. However, the distinctive features of theAmerican public trust are either identical to the features of the public rights of navigationand fishing, or a logical development of those features in a modern age. Given thatCanadian common law recognizes the public rights of navigation and fishing as well asthe public trust doctrine, it should be realistic to argue that any modern re-awakening ofthe public trust already embraces or should embrace the distinctive features of the publictrust identified by American courts.As with the public rights of navigation and fishing considered in Chapters One andThree, the American case law indicates that any grantee of public trust resourcesgenerally takes subject to the public trust, the government has an affirmative duty of careand protection with respect to trust resources (in effect a fiduciary obligation) and, thereare significant restrictions on extinguishment. Additional to these features and in keepingwith modern developments in administrative and environmental law, a private citizen hasstanding to enforce the trust without the need to show special damage and governmentis subject to a procedural obligation to consider the effects of proposed activities on bothtrust resources and values protected by the public trust.The fact that the distinctive features of the public rights of navigation and fishing are re-affirmed and extended under the public trust doctrine reinforces the conclusion reached106in Chapter One that certain resources and the public rights in those resources are specialin nature. Of all the potential consequences considered in Part II to flow from recognitionof the public trust doctrine at Canadian common law, the two most important ones arefirst, the recognition that the public trust imposes an administrative process ongovernment which circumscribes statutory obligations and discretion and second, therecognition and enhancement of the fact that certain resources are special and deservingof careful management and protection.Part I - The Nature of the Public TrustIntroductionSeeking to define the nature of the public trust is no simple task. As with the publicrights of navigation and fishing there is no real consensus among either academics orjudges as to the precise nature of the public trust. 3 It has been confidently asserted thatthe public trust is a "public property right" a and "squarely rooted in property law" 5 ,3 The academic debate on the public trust doctrine has in some quarters become quiteheated and somewhat "less than scholarly". See for example, J.L. Huffman, "A Fish Outof Water : The Public Trust Doctrine in a Constitutional Democracy" (1989) 19 Envt'l.L. 527, especially at 568 where, in criticizing Professor M. Blumm's comments aboutthe trust refers to "what is surely the longest footnote in this symposium issue".Professor Blumm in reply, "Public Property and the Democratization of Western WaterLaw", ibid. at 597 n. 108 remarks that "Professor Huffman's frequent criticisms of thepublic trust doctrine ... have earned him the reputation of being the Darth Vader of thepublic trust."4 Dunning, supra note 42 Ch.1 at 515.5 Lazarus, supra note 1 Ch.1 at 642.107an easement, 6 a type of covenant running with the land,' an American constitutionallyprotected right, 8 and, a source of four remedies :(i) a public easement guaranteeing access to trust resources;(ii) a restrictive servitude providing insulation against takings claims;(iii) a rule of statutory and constitutional construction disfavouringterminations of the trust; and(iv) a requirement of reasoned administrative decision making. 9The main focus however, of this Part will be on the public trust as both a trust and, morebroadly, as a fiduciary obligation.The Public Trust as a TrustAlthough its name may imply that it is a trust, at least of sorts, the view that the public6 See for example : Huffman, supra note 3 at 527 and 561; H.C. Dunning, "TheSignificance of California's Public Trust Easement for California Water Rights Law"(1980) 14 U.C. Davis L. Rev. 357; M.K. McCurdy, "Public Trust Protection forWetlands" (1989) 19 Envt'l. L. 683 at 691; Marks v. Whitney 6 Cal. 3d 251 at 259, 491P. 2d 374 at 380.7 S.W. Reed, "The Public Trust Doctrine : Is it Amphibious" (1986) 1 J. Envtl. L. &Litig. 107 at 118.8 Cohen, supra note 19 Ch.1 at 388. See also C.F. Wilkinson, "The Headwaters of thePublic Trust : Some Thoughts on the Source and Scope of the Traditional Doctrine"(1989) 19 Envtl. L. 425 for discussion of the public trust doctrine as part of federalconstitutional law.9 Blumm, supra note 42 Ch.1, especially at 582.108trust is in fact a trust has not been universally accepted. 10 While there is certainlyCanadian and American authority to support the view that the public trust is in fact atrust 11 , there may be some debate in Canada as to whether or not the public trust is a"political" trust or a "true" trust. This distinction was raised in the English cases of Titov. Waddell (No.2) [1977] 3 All E.R. 129 and Kinloch v. Secretary of State for India inCouncil (1882) 7 App. Cas. 619 and considered more recently in Guerin v. The Queen(1984) 13 D.L.R. (4th) 321 at 331. 12 The gist of the distinction is that a political trustpertains to "higher matters, such as might take place between the Crown and publicofficers discharging, under the directions of the Crown, duties or functions belonging to10 See in particular, Huffman, supra note 3, especially at 534-545. Huffman argues that thepublic trust does not have the 3 essential elements of a trust, namely a creator, a trusteeand a beneficiary. Huffman argues that although the state or government is presumablythe trustee and the public the beneficiary, there is no creator of the trust. Interestingly,Huffman does concede at 561 that the public trust "in its original formulation ... couldarguably be described as a trust". At note 146 he comments that "In a legal regime thatrecognised title to waters and submerged lands in the King, it was possible to describethe rights held in common by members of the public as either an easement or as anequitable interest in property in which the King held legal title. Because the King wasclearly distinct from the people (that is the trustee and the beneficiary were not the sameentity) the trust model is applicable. Nevertheless, the questions of who created the trustand thus its purpose, remain unanswered."11 See for example : R. v. Meyers (1853) 3 U.C.C.P. 305 at 357; R. v. Lord (1864) 1P.E.I. 245 at 257; R. v. Robertson (1882) 6 S.C.R. 52 at 126 and 138; Illinois CentralRailroad Company v. Illinois 146 U.S. 387, 13 S.Ct. 110; Cinque Bambini Partnershipv. Mississippi 491 So. 2d 508 at 511 (Miss. 1986); Phillips Petroleum Co. v.Mississippi 108 S.Ct. 791 (1988); Morse v. Oregon Div. of State Lands 34 Or. App.853, P. 2d 520 (1978); National Audubon Society v. Superior Court of Alpine City 658P. 2d 709 (Cal. 1983).12 See also : Rustomjee v. The Queen (1876) 2 Q.B.D. 69; Administrator of GelmanProperty v. Knoop [1933] Ch. 439; Town Investments Ltd v. Department of theEnvironment [1978] AC 359.109the prerogative and to the authority of the Crown"." Consequently, being a"governmental obligation"" or "sovereign act"' , a political trust is not enforceablein the courts. In contrast, a "true trust", or trust in the "lower sense" is justiciable.'In Guerin's case, Dickson J. (as he then was) expressed "some doubt as to the cogencyof the terminology of 'higher' and 'lower' trusts" 17 and sought to confine the politicaltrust cases to those concerning "the distribution of public funds or other property heldby government.' Both Dickson and Wilson H. emphasized the fact that in the politicaltrust cases the funds at issue were the property of the Crown and none of the partiesclaiming as beneficiaries could show an interest in the funds independent of the treaty,13 Kinloch, supra at 625-626.14 Tito, supra at 222. At 216-217, in seeking to differentiate between governmentalobligations and trust obligations, the court stated, "When it is alleged that the Crown isa trustee, an element which is of special importance consists of the governmental powersand obligations of the Crown ... If money or other property is vested in the Crown andis used for the benefit of others, one explanation can be that the Crown holds on a truetrust for those others. Another explanation can be that, without holding the property ona true trust, the Crown is nevertheless administering that property in exercise of theCrown's governmental functions." Interestingly, the court in Tito's case acknowledgedthat there is "a certain awkwardness in describing as a trust a relationship which is notenforceable by the courts" and that "in common speech in legal circles 'trust' is normallyused to mean an equitable relationship enforceable in the courts and not a governmentalrelationship which is not thus enforceable."15 L.A. Sheridan & G.W. Keeton, The Law of Trusts, 11th ed. (Barry Rose Publishers Ltd: Chichester, England, 1983) at 58.16 Kinloch, supra at 626.17 (1984) 13 D.L.R. (4th) 321 at 334.18 Ibid. at 336.110statute or other instrument alleged to give rise to an enforceable trust.' In contrast, inGuerin's case, the Indian's interest in land both pre-dated and existed independently ofthe Indian Act.'Public trust cases can be distinguished from the political trust cases on the same grounds,namely, public rights under the public trust exist independently of legislative or executiveaction. The political trust cases could, however, be raised in an attempt to defeatstatutory versions of the public trust. In these instances, unless public trust rights existedindependently of the statute, it could be argued that the government was merely fulfillingits governmental obligations.Such an argument can be rejected however, on several grounds. First, the internationalaspect of the political trust cases should be emphasized, particularly as internationaldealings between governments are more likely to attract the classification "sovereignacts". Kinloch's case, supra, involved the "grant" of war booty by Royal Warrant to theSecretary of State for India in Council "in trust" for the members of certain armedforces. Treaties were involved also in the political trust cases of Rustomjee v. The Queen(1876) 2 Q.B.D. 69 and Civilian War Claimants Association Ltd v. R. [1932] AC 14.Tito' s case, supra involved an agreement between a mining company and the landownersof a British Protectorate to establish a fund from mining royalties for the benefit of the19 Ibid. at 336 and 358-359.20 R.S.C. 1952, c. 149.111landowners. Accordingly, the political trust cases can arguably be distinguished fromdomestic statutory trusts. Furthermore, it would appear that the sovereign is deemed tohave agreed to act in the capacity of trustee simply by assenting to legislation imposingthe trust. In R. v. Mayor of Blenheim (1907) 28 N.Z.L.R. 249, Cooper J stated :Although the sovereign cannot be compelled to accept a trust, he may sustain thecharacter of a trustee by accepting the trust, and he has undoubtedly the capacityto take the estate and execute the trust. Where a statute vests public propertyin the sovereign for particular purposes, then the sovereign, being named inthe statute, and having assented to the statute, and having the capacity totake the estate and execute the trust, holds the property on the trusts createdby the statute. There may be a difficulty in finding and enforcing a remedy inthe Courts of law if the trust is not carried into effect, but that difficulty does notaffect the capacity of the sovereign to take the estate as a trustee.'Aside from the performance of "governmental obligations" and "sovereign acts", it wouldappear that the Crown can be classified as a trustee.' The difficulty, however, asmentioned in Mayor of Blenheim, supra is not so much in categorizing the Crown as atrustee but in enforcing the trust against the Crown. The position is summarized asfollows in Lewin on Trusts :21 (1907) 28 N.Z.L.R. 249 at 256.22 It is clear from Tito's case, supra, that the Crown can be a trustee if it agrees to do so.The court referred to the case of Civilian War Claimants Association Ltd v. R. [1932]AC 14 and the dictum of Lord Atkin at 27, "There is nothing, so far as I know, toprevent the Crown acting as agent if it chooses deliberately to do so." Lord Atkin'scomments were affirmed in A.G. v. Nissan [1969] 1 All ER 629 at 647. See also : W.J.Mowbray, Lewin on Trusts, 16th ed. (Sweet & Maxwell : London, 1964) at 13; L.A.Sheridan & G.W. Keeton, The Law of Trusts, 11th ed. (Barry Rose Publishers Ltd :Chichester, England, 1983) at 58; Re Collins & Ontario Pension Commission; ReBatchelor & Ontario Pension Commission (1986) 56 O.R. (2d) 274 (Div. Ct.) at 285(although the court did not hold that the Pension Commission, a governmental authority,was a trustee, it did hold that it was equivalent to a trustee); Williams v. A.G. (N.S.W.)(1913) 16 C.L.R. 404; and see also Hunt, supra note 2 Ch.1 at 176-178.112The sovereign may sustain the character of a trustee so far as regards the capacityto take the estate and to execute the trust, but it is doubtful if a beneficiary can,by any legal process, enforce the performance of the trust. The right of thebeneficiary is clear : the defect lies in the remedy.'If the public trust is in fact a trust, it would appear that classical trust law does not applyto the public trust or, if it does, to a lesser extent. Nanda and Ris claim that although thepublic trust doctrine "borrows many concepts from classical trust law, the doctrine is lessrigid in its application." 24 Hunt concludes that, "while the American system hasborrowed from classical trust law, it has done so cautiously, resulting in a doctrine whichis less rigid in its application than traditional trust concepts"."23 Lewin on Trust, ibid. at 13 and, see the authorities cited in that text at n. 30. See alsoHunt, supra note 2 Ch.1 at 177-178, but remember that her article was written prior toGuerin's case, supra.24 Nanda & Ris, supra note 1 Ch.1 at 296-297. The authors refer to Sax's article, supranote 1 Ch.1 and his conclusion at 553 that "Perhaps the most striking impressionproduced by a review of public trust cases in various jurisdictions is the sense ofopenness which the law provides; there is generally support for whatever decision a courtmight wish to adopt".25 Hunt, supra note 2 Ch.1 at 180. Hunt does however remark at 179 that "classical trustlaw has not generally been applied in the American public trust cases". See also State ofNevada v. U.S. 512 F. Supp. 166 (1981) at 172, where the court in considering theresponsibilities of Congress with respect to public lands stated that the trustresponsibilities of Congress were not the same as those of a private trustee to trustbeneficiaries. But see Idaho Forest Industries v. Hayden Lake Watershed ImprovementDistrict 112 Idaho 512, 733 P. 2d 733 (Idaho 1987) where Bakes J at 738, Shepherd CJand Donaldson and Huntley 77 concurring, said "The public trust doctrine is based uponcommon law equitable principles. That is, the administration of land subject to the publictrust is governed by the same principles applicable to the administration of trusts ingeneral."113The approach of the American courts in the cases considered in Chapter Two consistentlysupport the view that if classical trust law does apply to the public trust, it does so onlyin a very loose sense. There is generally little attention given to the pre-requisites toestablishing a trust, aside from frequent references to the state as trustee, and lessfrequent references to the public as beneficiary.Although there may be some benefit in the application of classical trust law to the publictrust, in particular the benefit of a presumption in favour of protection of trust resources,and a "trust law preference for the continuance of the trust and the prohibition ofinvasion of the corpus" 26 , the application of classical trust law to the public trust islikely to be less advantageous in the long term, posing barriers to claimants seeking touphold the trust and further muddying the waters of the doctrine.The Canadian case of Green v. Ontario (1972) 34 D.L.R. (3d) 20 is a good example ofthe difficulties that can arise from strict application of classical trust law to the publictrust. The case is the only reported Canadian decision in which the public trust has beenraised.' Although the case was dismissed on the grounds that the plaintiff lackedCohen, supra note 19 Ch.1 at 392. See also V.J. Yannacone, Jr. & B.S. Cohen,Environmental Rights and Remedies, vol. 1 (Rochester, New York : The Lawyers Co-Operative Publishing Co., 1972) at 14. As with Cohen, the authors stress at 14 that theeffect of such presumptions is to shift the burden of proof "to the despoiler of theenvironment to come forward with the evidence to prove the necessity for damaging thetrust corpus".As mentioned in Chapter Three, the public trust doctrine has been raised also in litigationconcerning Wood Buffalo National Park and in the unreported decisions of Mann v. R.114standing, Lerner J considered and resoundingly dismissed the argument that a statutorytrust had been created by the Provincial Parks Act." Pursuant to section 2 of that Act:All provincial parks are dedicated to the people of the Province of Ontario andothers who may use them for their healthful enjoyment and education, and theprovincial parks shall be maintained for the benefit of future generations inaccordance with this Act and the regulations.The Sandbanks Provincial Park was established some two years after the Province ofOntario had entered into a written lease with Lake Ontario Cement Ltd for a parcel ofland forming part of the sand banks and some lands under the waters of West Lake. Thelease was for a period of 75 years and permitted the lessee to excavate unlimitedquantities of sand from the land. The Park was adjacent to these leased lands. The caseis accordingly similar to the Redwood Park litigation considered in Chapter Two in thatthe action complained of was occurring outside (or here primarily outside) the park area.The plaintiff, a researcher for Pollution Probe at the University of Toronto, alleged thatby permitting the use of the lands adjoining the park for sand excavation, the Provinceof Ontario was in breach of the statutory trust imposed by section 2 of the Provincial(1 June, 1990), Vancouver A881092 (B.C.S.C.) and (25 April, 1991) VancouverA881092 (B.C.S.C.). This case is considered later in this Chapter.28 R.S.O. 1970, c. 371.115Parks Act mainly because certain "towering sand dunes" located partly within the parkbut primarily on the leasehold property, constituted a "unique ecological, geological andrecreational resource required to be maintained for the benefit of the people of Ontario".Interestingly, no argument appears to have been made that the lands in question (beinglands under and adjacent to a lake) were subject to a public trust at common law. 29Perhaps the lake was not thought to constitute a navigable waterway at Canadian law.In rejecting the plaintiff's claim that a statutory trust had been created, Mr Justice Lernerraised various objections based on classical trust law. One objection was uncertainty ofsubject matter. Lerner J. concluded that because section 3 (2) of the Act empowered theProvince to increase, decrease or even close down a park, there could not be a trust.Referring to a source of classic trust law, Keeton's Law of Trusts, Lerner J. remarks thata trust can only arise at law if the trustee could be compelled in equity to hold trustproperty on behalf of some person/s. In his view, section 3 (2) indicated that there wasno such compulsion. 3°This reasoning is curious for two reasons. First, as mentioned earlier, it is doubtfulwhether classical trust law should be applied to the public trust doctrine. If it is, theAmerican case law indicates classical trust law has been applied only loosely. Second,any significant review of American public trust law will reveal that dedication of trust29 Counsels' arguments and authorities are not cited in the case.3° (1972) 34 D.L.R. (3d) 20 at 31.116property is not irrevocable.' The American case law clearly recognises that the statehas the power to change the uses of the trust. It is precisely because of this power thatthere are strict rules of interpretation governing uses of trust property. Any statutepurporting to abandon the trust will be strictly construed; the intent to abandon must be"clearly expressed or necessarily implied" : City of Berkeley v. Superior Court 26 Cal.3d 515, 606 P.2d 362 (1980). Abandonment of the public use will not be implied if anyother inference is reasonably possible and, if any interpretation of the statute isreasonably possible which would not involve a destruction of the public use or anintention to terminate it in violation of the trust, that interpretation is to be adopted :People v. California Fish Co. 166 Cal. 576, 138 P. 79. (1913).Mr Justice Lerner's next objection to the plaintiff's argument is that the beneficiaries(presumably "the people of Ontario and other who may use [the parks] ") were not readilyascertainable. As Hunt points out, this is unlikely to be a problem in future in view ofdevelopments in classical trust law since the case was decided.' Furthermore, it hasnot been a bar to the application of the public trust doctrine in the United States.See also Hunt, supra note 2 Ch.1 at 175-176 and the discussion of the power of trusteesat classical trust law to alter the nature of trust property and, possibly also to actuallydecrease the size of the trust property.Ibid.at 176. Referring to the English House of Lords decision in McPhail v. Doulton(1971) A.C. 424, Hunt notes that trustees may no longer be required to identify everyperson within the class of beneficiaries. It may now be sufficient simply to "identify areasonable and sufficient number of beneficiaries so that the trustees can discharge theirduty of considering the range of possible recipients and thereby make an informedchoice."117A more interesting objection raised by Lerner J. is that because the Provincial Parks Actgives the Province "unfettered and wide-ranging powers in the operation and use of itsparks" 33 , including the use of parks for private business enterprises and other gainfulactivities, the plaintiff's action for breach of trust must fail.Mr Justice Lerner's reasons for this conclusion are somewhat ambiguous. He may bearguing that the government has sufficient discretionary power under the legislation toauthorize sand mining. This seems unlikely given the wording of section 2 of the Act.Alternatively, he may be suggesting that the existence of such broad discretion preventsa trust arising. However, as Hunt rightly points out, the fact that a trustee hasdiscretionary powers with respect to the operation of the trust does not preclude theexistence of a trust. 34 Possibly, Lerner J. is suggesting that the commercial nature ofthe activities is inconsistent with a public trust over parks. As mentioned earlier inChapter Two in relation to parks, there is a perception by some courts that parks andprivate enterprise are, in the absence of clear legislative intent, mutually exclusive.However, the fact that the legislation permits commercial enterprise would not of itselfextinguish the trust or preclude the creation of the trust. Rather, because such uses wouldgenerally not be regarded as consistent with trust purposes (see restrictions on alienation,discussed below), private parties would only acquire a right to use the park subject to thepublic trust. As the Court stated in the Mono Lake case considered in Chapter Two :33 (1972) 34 D.L.R. (3d) 20 at 31.34 Hunt, supra note 2 Ch.1 at 176.118Except in those rare instances in which a grantee may acquire a right to useformer trust property free of trust restrictions, the grantee holds subject to thetrust, and while he may assert a vested right to the servient estate (the right of usesubject to the trust) ... he can claim no vested right to bar recognition of the trustor state action to carry out its purposes. 35Mr Justice Lerner concludes his judgment with the comment that "the action is vexatiousand frivolous. I say this because the plaintiff had to know of the existence and terms ofthe lease and that it pre-dated by a substantial period of time, the establishment ofSandbanks Provincial Park." 36 It would be interesting to see how a Canadian courtwould approach this argument today, given American decisions such as the Mono Lakecase, supra. As mentioned earlier, in that case the court was held to have a continuingduty of supervision over trust property. Furthermore, the state had the power toreconsider allocation decisions. The need to do so would be even more pressing where,as in the Green case, the initial resource allocation decision had failed to weigh andconsider public trust purposes. The scope of the supervisory role of the state isconsidered later in this Chapter with respect to the public trust as an administrativeprocess.The decision in Green's case was based on the fact that the plaintiff had no standing and35 658 P.2d 709 (Cal., 1983) at 723.36 (1973) 2 O.R. 396 at p. 408.119accordingly, Mr Justice Lerner's comments concerning the public trust were obiter dictaonly. Although the public trust alleged in that case had a statutory base, it is interestingthat there was no consideration of American public trust law. Given the explosion of thepublic trust doctrine in the United States since the 1970's, future Canadian cases on thepublic trust are unlikely to mirror the same disregard for American case law.Furthermore, for the reasons outlined above, and the less stringent standing requirementsset out in Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607 (considered laterin this Chapter) it is most unlikely that the case would be decided the same way today.Although Mr Justice Lerner's application of classical trust law may be questionable, Huntrefers to two other problems which may arise from the application of classical trust lawto the public trust doctrine, both of which are mentioned earlier. These are, first, thedifficulties in classifying the Crown as trustee and second, the limited range of remediesthat may be enforced against the Crown for any breach of its trust duties. She concludesthat "there are grave substantive and procedural problems arising from the applicationof classical trust law in a public trust context" . 37The Public Trust as a Fiduciary ObligationIt would seem therefore that a preferable way to approach the public trust doctrine wouldbe either to apply classical trust law very loosely or, to classify the public trust morebroadly as a fiduciary obligation imposed on government, rather than a trust per se.37 Hunt, supra note 2 Ch.1 at 178.120Certainly the more flexible nature of the law regarding fiduciaries would seem moreappropriate to the public trust doctrine than the law governing a specific type of fiduciaryrelationship, namely classical trust law. As with the public trust doctrine, the lawconcerning fiduciaries has evolved to meet the changing needs of society, and the courtshave deliberately refrained from confining the perimeters of fiduciary relationships. InTufton v. Sperni [1952] 2 TLR 516, Sir Raymond Evershed, M.R. quoting from Tate v.Williamson (1866) 2 Ch. App. 55 remarked with respect to fiduciaries :I observe and repeat that "the Courts have always been careful not to fetter thisuseful jurisdiction by defining the exact limits of its exercise." The existence ofthe jurisdiction and the right and duty to exercise it must in every case depend onthe special facts of that case and the inferences properly to be drawn fromthem."Similar comments were made by the Australian High Court in Hospital Products v. U.S.Surgical Corporation (1984) 156 CLR 41, 55 ALR 417. Gibbs C.J., having noted thatthe authorities provided no comprehensive statement of the criteria by which a fiduciaryrelationship could be established, concluded :I doubt if it is fruitful to attempt to make a general statement of the circumstancesin which a fiduciary relationship will be found to exist. Fiduciary relations are ofdifferent types, carrying different obligations ... and a test which might seemappropriate to determine whether a fiduciary relationship existed for one purposemight be quite inappropriate for another purpose. 3938 [1952] 2 TLR 516 at 522. He further commented at 552 that "the jurisdiction is notcircumscribed by reference to defined limits".39 (1984) 55 A.L.R. 417 at 432. See also Mason 7, as he then was, at 454, "the courts havedeclined to define the concept [of a fiduciary], preferring instead to develop the law ina case by case approach" and at 458, "every such transaction must be examined on itsmerits with a view to ascertaining whether it manifests the characteristics of a fiduciaryrelationship. "121In keeping with judicial reluctance to define conclusively the characteristics of a fiduciaryrelationship, the courts have consistently asserted that the categories of fiduciary are notclosed.'Despite the absence of definitive hallmarks of a fiduciary relationship, certain keyfeatures can be distilled from the case law. Professor Weinrib, whose work has beencited in various cases, 41 stresses that "the hallmark of a fiduciary relation is that therelative legal positions are such that one party is at the mercy of the other'sdiscretion". 42 In Weinrib's view, the fiduciary obligation functions as a method forcontrolling discretion, "the fiduciary obligation is a device for regulating the conduct ofa fiduciary where a fiduciary, through delegated power, can affect the legal position ofthe principal" . 43Several cases have emphasized that it is the combination of discretionary power in oneparty, and vulnerability in the other, that have led to the imposition of a fiduciary40 Tufton v. Sperni, supra note 38 at 522; English v. Dedham Vale Properties Ltd [1978]1 W.L.R. 93 at 110; Laskin v. Bache & Co. Inc. (1971) 23 D.L.R. (3d) 385 at 392;Goldex Mines Ltd v. Revill (1974) 54 D.L.R. (3d) 672 at 680; Guerin v. The Queen(1984) 13 D.L.R. (4th) 339 at 341; Hospital Products Ltd v. United States SurgicalCorporation, supra note 39 at 432 and 434; Mabo v. Queensland (1992) 66 A.L.R. 408per Toohey J at 491.41 See in particular : Dickson J (as he then was) in Guerin v. The Queen (1984) 13 D.L.R.(4th) 339 at 340-341 and Mason J (as he then was) in Hospital Products Ltd v. UnitedStates Surgical Corporation (1984) 55 ALR at 454.42 E.J. Weinrib, "The Fiduciary Obligation" (1975) 25 U.T.L.J. 1 at 7.43 Ibid. at 9.122obligation. In Guerin 's case, supra, Dickson J. in holding that the Crown was under afiduciary obligation to the Indians, focused on the fact that Indian title to land wasinalienable, except by surrender to the Crown. He stressed that this surrenderrequirement had been introduced to prevent the Indians from being exploited byprospective purchasers. The Crown, in a very paternalistic manner, undertook theresponsibility of deciding on the Indians' behalf, where their best interests lay - theIndians were regarded as incapable of making such decisions themselves.'The vulnerability of the principal need not be pre-existing; it may arise because of thepower of the fiduciary to adversely affect the interests of another party. In HospitalProducts Ltd, supra, Mason J. (as he then was) remarked :The critical feature of these relationships is that the fiduciary undertakes or agreesto act for or on behalf of or in the interests of another person in the exercise ofa power or discretion which will affect the interests of that person in a legal orpractical sense. The relationship between the parties is therefore one which givesthe fiduciary a special opportunity to exercise the power or discretion to thedetriment of that other person who is accordingly vulnerable to abuse by thefiduciaryThe same point was made by Toohey J. in Mabo v. Queensland (1992) 66 A.L.R. 408.In discussing the power of the Crown to alienate aboriginal land, he said :[T]his power and corresponding vulnerability give rise to a fiduciary obligationIbid. , especially at 340. See also Re Heyl & Lac Minerals Ltd (1985) 50 O.R. (2d) 535,aff'd (1985) 52 O.R. (2d) 224. Citing Guerin 's case, the court at 551 emphasized thatthe two shareholders were "at the mercy of the other's discretion" and that their interestswere "affected by and ... dependent on the manner in which the fiduciary used thediscretion which had been delegated to him".45 (1984) 55 A.L.R. 417 at 455.123on the part of the Crown. The power to destroy or impair a people's interests inthis way is extraordinary and is sufficient to attract regulation by Equity to ensurethat the position is not abused. The fiduciary relationship arises, therefore, outof the power of the Crown to extinguish traditional title by alienating the land orotherwise; it does not depend on an exercise of that power."The nature of the public's interests in public trust resources is in many ways analogousto that of aboriginal interests in land. The legal nature of the interest tends to defyprecise description and yet as discussed in Chapter One, there is a recognition that therelationship between the people and the resource is a special one. Furthermore, thepower of the state to destroy or impair the public's interests in diminishing and valuablepublic resources is enormous. In many instances, once destroyed or severely damaged,these resources are lost forever and the impact on the global environment can bedevastating. As Hunter remarks:Another major ecological tenet is that the world is finite. The earth can supportonly so many people and only so much human activity before limits are reached.This lesson was driven home by the oil crisis of the 1970's as well as by thepesticide scare of the 1960's. The current deterioration of the ozone layer isanother vivid example of the complex, unpredictable and potentially catastrophiceffects posed by our disregard of the environmental limits to economic growth ...In short, the environment imposes constraints on our freedom; these constraintsare not the product of value choices but of the scientific imperative of theenvironment's limitations . 47To many aboriginal people, their connection with the land is a connection with life, aspiritual and cultural connection. While most Western societies have, to a large extent,"lost" this spiritual and cultural connection, the public interest in preserving theenvironment is also, ultimately, a connection with life. If the environment is destroyed," (1992) 66 A.L.R. 408 at 493.Hunter, supra note 51 Ch.2 at 314.124so also is the ability to sustain human life. The power of governments to destroy orimpair this life connection, both in the present and for the future is, to use Toohey J.'sexpression, "extraordinary" and similarly deserving of protection."Having concluded that the government is, at the very least, under a broad fiduciaryobligation with respect to public trust resources, what is the scope of that fiduciaryobligation ? As with the public rights of navigation and fishing considered in ChaptersOne and Two, it is clear from the American cases that the state has a duty of care andprotection with respect to trust resources and that this duty is an affirmative duty. In Cityof Milwaukee v. State 214 N.W. 820 (1927), the court asserted that :The trust reposed in the state is not a passive trust; it is governmental, active andadministrative ... the trust, being both active and administrative, requires thelawmaking body to act in all cases where action is necessary, not only to preservethe trust, but to promote it."48 See also : R.H. Bartlett, "The Fiduciary Obligation of the Crown to the Indians" (1989)53 Sask. L. Rev. 301. In addition to stressing the combination of power and discretionas a source of the fiduciary obligation, Bartlett focuses on two other elements, controland management. He argues at 305 and 313 in particular that broad powers of controland management over Indian lands gives rise to the accountability of the Crown as afiduciary. Toohey J in Mabo, supra makes a similar point, arguing at 493 "Moreover if,contrary to the view I have expressed, the relationship between the Crown and theMeriam people ... were insufficient to give rise to a fiduciary obligation, both the courseof dealings by the Queensland Government [creation of reserves, appointment of trustees]... and the exercise of control over or regulation of the Islanders themselves by welfarelegislation ... would certainly create such an obligation". This control and managementargument could have particular application in Canada with respect to statutory regimesfor parks, fisheries etc.49 214 N.W. 820 at 830. See also District of Columbia v. Air Florida, Inc. 750 F. 2d 1077(D.C. Cir. 1984) at 1083, "It has evolved from a primarily negative restraint on states'125Similarly in State Dept. of Environmental Protection v. Jersey Central Power & LightCo. 125 N.J. Super. 97, 308 A. 2d 671 (1973), the Superior Court of New Jersey inholding that the public trust had been diminished by the operations of the power companywhich caused a sudden drop in water temperature, stated that :The State has not only the right but also the affirmative fiduciary obligation toensure that the rights of the public to a viable marine environment are protected,and to seek compensation for any diminution of trust corpus."Part II - The Consequences of Recognition of the Public Trust DoctrineIntroductionThe review in Chapter One of the public rights of navigation and fishing and the publicrights with respect to highways revealed that both at law and economics, certainresources (and the public rights in those resources) are regarded as "special". One of theprimary consequences of the public trust doctrine has been to enhance this recognition.As with the public rights of navigation and fishing a grantee of trust rights generallytakes subject to the trust, incidental rights are protected also, there is an affirmative dutyof care and protection imposed on government with respect to trust resources and thereability to alienate trust lands into a source of positive state duties"; and the cases citedin Lazarus, supra note 1 Ch.1 at 650 n. 112.50 308 A. 2d 671 (1973) at 674. Interestingly, mirroring the law of fiduciaries, the courtstated at 674, "In regard to the damage allegedly done to the public trust, the court is notlimited to any set definition of a pollutant. Rather, the court will determine whetherunder traditional notions of damages, damage has occurred." See R.W. Johnston, "WaterPollution and the Public Trust Doctrine" (1989) 19 Envt'l. L. 485 for argument that thepublic trust doctrine should operate to protect against water pollution and preserve waterquality.126are significant restrictions on extinguishment. In particular, as with the public rightsconsidered in Chapter One, legislation is required to extinguish the public trust.In contrast, however, to the public rights considered in Chapter One, the public trust hasresponded to the needs of a modern age and an increasing concern for the environment.No longer is it necessary to show special damage to enforce the public rights - the publictrust gives private citizens standing to enforce the trust. While this feature has to someextent been by-passed by recent developments in the American and Canadian law ofstanding, the public trust has not been made redundant. In America, the public trust hasbeen found to impose an administrative process on government in its dealings with thetrust. Most importantly, this process obligation has been held to circumscribe legislativediscretion and obligations. This latest development is a logical extension of the duty ofcare and protection with respect to the public rights of navigation and fishing. Originallyimposed on one individual, the King, the obligation now rests on a large leviathan, themodern day government and administrative bureaucracy. Some form of processobligation was inevitable if the government's fiduciary obligation with respect to publictrust resources was to be fulfilled.Although this Chapter refers primarily to the American public trust case law, many ofthe consequences of recognition of the public trust doctrine flow directly from thedistinctive features of the public rights of navigation and fishing considered in ChapterOne. As mentioned in Chapter Three, these rights form part of Canadian common law127and are similar in scope to their English predecessors. The American re-affirmation andexpansion of some of these distinctive features, such as legal standing and anadministrative process obligation on government, have served to emphasize once againthat certain resources and the public rights in those resources are special and deservingof careful management and protection.Although the public trust doctrine has been enshrined in legislative form in the Yukonand the Northwest Territories, 51 and is being considered in British Columbia andSaskatchewan,' there is still an important place for a common law public trust doctrinein Canada, especially given the weakness of Canadian environmental law. There arearguably five main consequences which will flow from recognition of the public trustdoctrine at Canadian common law :1. the recognition of a substantive right, and therefore legal standing, in membersof the public to vindicate public trust interests;2. the imposition of an affirmative fiduciary obligation on government with respectto trust resources;3. the imposition of an administrative process on government with respect tosupervision and disposition of trust resources;4. restrictions on alienation of public trust resources; and51 Environment Act, R.S.W.T. 1988, c.83 (Supp.); Environmental Rights Act, S.N.W.T.1990, c. 28. See the comments concerning the dubious legal effect of this legislationsupra note 2, Introduction.52 See the sources listed supra note 3, Introduction.1285.^in an environmental context, an increasing recognition of the importance of thenatural environment and the special and inter-related nature of trust resources(which facilitates an ecological approach to property).As mentioned earlier, these features are either identical to the features of the public rightsof navigation and fishing (the precursor to the public trust) or are a logical developmentof those features in a modern society.The Public Trust as a Substantive RightInitially, it would seem that the most obvious consequence of recognition of the publictrust doctrine at Canadian common law is the provision of standing to private citizens.Certainly, the early promoters of the public trust doctrine in the United States wereconcerned primarily with empowering citizens to enforce the trust. The public trust wasseen as a means for providing citizens with the necessary legal interest or legal rightrequired to confer standing to sue." Sax, in his initial and influential article on thepublic trust doctrine stressed that for the public trust doctrine to be a usefulenvironmental tool it had to serve three functions :(i) it must contain some concept of a legal right in the general public;(ii) it must be enforceable against the government; andLazarus, supra note 1 Ch.1 at 646 and 658. Lazarus notes at 658 that at the timeProfessor Sax wrote his initial article on the public trust doctrine a citizen had to showan injury to a legal interest to possess standing to sue. Furthermore, the legal right hadto be "one of property, one arising out of contract, one protected against tortiousinvasion, or one founded on a statute which confers a privilege" : Tennessee Elec. PowerCo. v. Tennessee Valley Authority 306 U.S. 118 (1939) at 137-138.129(iii) it must be capable of an interpretation consistent with contemporaryconcerns for environmental quality.'As is evident from the cases discussed in Chapter Two, courts in the United States havegenerally upheld the right of private citizens to bring actions to vindicate the publictrust.' Lazarus, in his extensive review of public trust litigation in the United Statesdivides cases since 1970 into three main categories :(i)^private citizens suing the government for allegedly violating thedoctrine;private citizens suing other private parties for allegedly violatingthe doctrine; andthe government suing private parties for allegedly violating thedoctrine. 56Interestingly, Lazarus' review of American public trust cases revealed that it was thegovernment, and not individual members of the public, that was the party invoking thedoctrine in the majority of cases. He concludes that the third category of public trustlitigation "has been one of the most important areas of development for the doctrine, if54 Sax, supra note 1 Ch.1 at 47455 See also Lazarus, supra, note 1 ch.1 at 646.56 Ibid. at 645-646.130not the most important" . 5' As discussed later with regard to restrictions onextinguishment of public trust resources, the public trust doctrine can serve to enhancegovernment power at the expense of private property interests.If a primary rationale for the public trust doctrine is to provide private citizens with legalstanding to uphold the public trust, the continued relevance of the doctrine could bequestioned, given the Canadian Supreme Court's recognition of public interest standingin Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607, 33 D.L.R. (4th) 321. 58Although the case did not involve environmental issues it has been said that "[t]he Finlaydecision gave environmentalists formal access to the courts. " 59Ibid., at 646. This pattern has been repeated in cases brought under the MichiganEnvironmental Protection Act. The legislation, which is in effect an environmental billof rights, empowers private citizens and government agencies to sue other public orprivate entities "for the protection of air, water, and other natural resources and thepublic trust therein from pollution, impairment or other destruction." Public agencieshave been frequent plaintiffs in MEPA litigation; see generally J.L. Sax & R.L. Conner,"Michigan's Environmental Protection Act of 1970 : A Progress Report" (1972) 70Mich. L. Rev. 1003 at 1007; R.L. Abrams, "Thresholds of Harm in EnvironmentalLitigation : The Michigan Environmental Protection Act as Model of a MinimalRequirement ?" (1983) 7 H.E.L.R. 107 at 118-119.Lazarus, supra note 1 Ch.1 makes this criticism with respect to the American public trustdoctrine. He argues at 660 that "The law of standing ... has dramatically evolved toembrace the particular characteristics of a case or controversy involving environmentalinjuries ... The rationale of the trust doctrine was unnecessary." It should be notedhowever, that his criticisms concerning the continued reliance on the public trust doctrineas an environmental tool are based to a large extent on the development of the policepower in the United States, as well as advances in nuisance law and administrative law.See especially 658-665 and 674-680.S.A.G.Elgie, "Environmental Groups and the Courts : 1970-1992" in G. Thompson,M.L. McConnell & L.B. Huestis, eds. , Environmental Law and Business in Canada(Canada Law Book : Aurora, Ontario, 1993) at 202.131Prior to Finlay 's case, the general rule regarding standing was that where a question ofpublic right or public interest was raised, the Attorney-General was the proper plaintiff.A member of the public could not sue for declaratory or injunctive relief in such a caseunless the citizen could establish "a sufficient private or personal interest in the subjectmatter of the proceedings". 60 Such private or personal interest could be established ifthe citizen could show interference with a private right or, special damage peculiar to thecitizen and resulting from the interference with the public right."However, in a series of decisions,' the Supreme Court introduced an exception to thegeneral rule. The Supreme Court held, in effect, that where there was a challenge to theconstitutionality or operative effect of legislation, the court had a discretion to recognizepublic interest standing. The question raised in Finlay 's case was whether the court haddiscretionary power to recognize public interest standing in cases involving non-constitutional challenges to statutory authority for administrative action. The SupremeCourt held that it did have such power, provided the following criteria were satisfied :60 Finlay's case, supra, (1986) 33 D.L.R. (4th) 321 at 329.61 Ibid. at 330. See generally the court's discussion of the authorities and the meaning of"interference with a private right" and "special damage" at 330-331.62 Thorson v. A.G. for Canada (No. 2) (1974) 43 D.L.R. (3d) 1, [1975] 1 S.C.R. 138;Nova Scotia Board of Censors v. McNeill (1975) 55 D.L.R. (3d) 632, [1976] 2 S.C.R.265 and, Minister of Justice of Canada v. Borowski (1981) 130 D.L.R. (3d) 588, [1981]2 S.C.R. 575.132(i) the issue had to be justiciable; 63(ii) the issue must be "serious" and raised by a person with a "genuine interestin the issue" ; 64 and(iii) there must be "no other reasonable and effective manner in which theissue may be brought before a court".'It is clear from the case law that public interest standing applies to environmental issuesas well.' In his review of public interest environmental law suits, Elgie 67 concludesthat since the Finlay case, standing generally has been granted to environmental plaintiffsbringing administrative actions." Elgie does however identify other bathers to63 On the question of justiciability, the court noted at 340 "where there is an issue whichis appropriate for judicial determination the courts should not decline to determine it onthe ground that because of its policy context or implications it is better left for reviewand determination by the legislative or executive branches of government."64 Ibid. at 341.65 Ibid.66 See for example : Energy Probe v. Canada (A.G.) (1989) 3 C.E.L.R. (N.S.) 262 (Ont.C.A.); Western Canada Wilderness Committee v. Minister of Environment & Parks(B. C.) (1988) 25 B.C.L.R. (2d) 93 (B.C.S.C.) especially at 97 where the judge remarked"The mere fact that the petitioners are without a legal or economic interest in theresolution of the issue they raise cannot be sufficient to deny them standing ... Theymust be regarded as concerned citizens interested in ensuring that lawful process isfollowed when decisions affecting the protection and management of wildlife in BritishColumbia are being made"; Reese v. Alberta (Minister of Forestry, Lands & Wildlife(1992) 123 A.C. 241 (Alb. Q .B. ) .67 Elgie, supra note 59 at 202.68 Ibid. He notes at 202 n. 138 that out of approximately 50 administrative actions he hasidentified since 1987, public interest standing was denied under the Finlay test in onlyone case.133administrative actions by environmental plaintiffs. In addition to the high costs oflitigation (reduced somewhat with the provision of legal services by public interestenvironmental law organizations),' he stresses that :Since 1987, the principal limitation on administrative actions by environmentalgroups has been the overall weakness of environmental legislation in Canada.There are two aspects to this weakness. First, a number of importantenvironmental issues simply are not addressed by legislation in Canada. Forinstance, there is no legislation dealing with protection of endangered species inmost provinces and at the federal level.' Second, Canadian environmentallegislation tends to confer very wide discretion on officials who are delegated thetask of administering statutes ... Because Canadian environmental legislationplaces relatively few concrete environmental obligations on government officials,there are correspondingly few opportunities for administrative actions. 71Despite Elgie's conclusions as to the positive effect of Finlay 's case in opening the doorto environmental plaintiffs, the public trust doctrine is not redundant as regardsadministrative actions. Where applicable as a common law doctrine, the public trustdoctrine could operate to some extent to "fill the gaps", both where there is no relevantlegislation and where the legislation is relatively weak because of broad discretionarypowers conferred on administrators. For example, if as has been argued in the UnitedStates,' wetlands are subject to a public trust at Canadian common law, adverseibid. at 205. Elgie notes however, that losing plaintiffs are still at risk of paying theother side's legal costs.He notes at 207 n. 186 that only 3 provinces have passed endangered species legislation,namely Manitoba, Ontario and New Brunswick and that similar claims can be maderegarding protection of wetlands and wilderness areas.Ibid. at 207.Robbins v. Dept. of Public Works 355 Mass. 328, 244 N.E. 2d at 577 (1969); Just v.Marinette County 56 Wis. 2d 7, 201 N.W. 2d 761 (1972). See also M.K. McCurdy,"Public Trust Protection for Wetlands", supra note 6.134administrative action with respect to that resource could be challenged under the commonlaw public trust doctrine. The public trust doctrine can therefore (at least in certain areas)provide both a cause of action and standing in the absence of appropriate environmentallegislation. More importantly, if as argued below, the public trust imposes anadministrative process which the government and its administrators must follow whenmaking decisions affecting trust resources, the public trust doctrine could complementthe statutory regime. Accordingly, despite broad statutory discretion, administratorswould still be required to comply with common law process requirements imposed by thepublic trust - administrative discretion and statutory obligations would therefore becircumscribed by the public trust doctrine.The Public Trust as an Administrative ProcessIn addition to providing private citizens and government with the right to bring legalaction, it appears from some of the recent American cases that the public trust doctrineimposes what may be best described as an "administrative decision-making process" ongovernment.' In this section the primary focus will be on administrative processobligations in an environmental context. The process obligations could also, for example,73 Blumm, supra note 42 Ch.1 at 589-594 argues that this process is in fact an example ofjudicial insistence on 'hard look' administrative decision making. Blumm notes at 589-590 that under the 'hard look' doctrine, courts require agencies to "(1) offer detailedexplanations of their decisions, (2) justify departures from past practices, (3) alloweffective participation in the regulatory process of a broad range of affected interests, and(4) consider alternatives to proposed actions. He concludes at 590 that the result of the'hard look' doctrine "has been a judicial emphasis on process fairness and 'reasoneddecision making' from administrators, rather than particular substantive results."135embrace requirements such as ensuring that government obtains a proper price whendisposing of public trust property.As mentioned earlier, this administrative process obligation is a logical modern extensionof the duty of care and protection imposed on government with respect to the publicrights of navigation and fishing given the size of modern government and the explosionof administrative authorities. The American cases indicate that in its dealings with trustresources, the government is not free to alienate trust resources at will, even withlegislative authority. As the court stated in Kootenai Environmental Alliance v.Panhandle Yacht Club 105 Idaho 622, 671 P. 2d 1085 (1983) :[M]ere compliance by these bodies [the State Land Board and the StateDepartment of Lands] with their legislative authority is not sufficient to determineif their actions comport with the requirements of the public trust doctrine. Thepublic trust doctrine at all times forms the outer boundaries of permissablegovernment action with respect to government resources.'Due regard must accordingly be given to the effect of the proposed disposition on bothtrust resources and the interests protected by the public trust. One academic has evenargued that "full implementation of the public trust doctrine requires at a minimum anenvironmental assessment and, in most cases worth the effort of litigating, a fullenvironmental impact statement.""671 P. 2d 1085 at 1095.'S ^supra note 7 at 108. See also his discussion of process obligations at 117-121.136One of the clearest expressions of this administrative process is the Californian case ofNational Audubon Society v. Superior Court 658 P. 2d 709 (Cal. 1983), the "MonoLake" case, considered in Chapter Two. As mentioned in Chapter Two, the caseinvolved the effect of the diversion of non-navigable tributaries into Mono Lake. Theplaintiffs, the National Audubon Society, brought an action to prevent the Departmentof Water and Power of the City of Los Angeles from continuing to divert water fromMono Lake on the grounds that the shores, bed and waters of the lake were protected bya public trust.Although the court recognised that the state did have the power to grant non-vestedusufructuary rights to appropriate water, even if such diversions harmed public trust uses,such a decision could not be made lightly.' Coupled with the power to diminish thepublic trust came certain responsibilities. The court made the following commentsregarding the role and responsibilities of the state :1.^the "core of the public trust doctrine is the state's authority as sovereign toexercise a continuous supervision and control over the navigable waters of theInterestingly, the court distinguished between the types of waters and lands subject to thepublic trust doctrine, remarking at 712 that "The corollary rule which evolved in tidelandand lakeshore cases barring conveyance of rights free of the trust except to serve trustpurposes cannot, however, apply without modification to flowing waters". Although thecourt held that the state could grant rights to appropriate water even if such diversionharmed the public trust, the court noted at 721 and 723 that parties acquiring rights intrust property generally acquire those rights subject to the public trust.137state and the lands underlying those waters"; 772. before water diversions were approved, the effect of the diversions upon interestsprotected by the trust (which included environmental and recreational values) hadto be considered and the state should "attempt, so far as feasible, to avoid orminimize any harm to those interests" 78 ; the state "has an affirmative duty totake the public trust into account in the planning and allocation of waterresources and to protect public trust uses whenever feasible"; 793. the continuing power of the state as administrator of the public trust extended to"the revocation of previously granted rights or to the enforcement of the trustagainst lands long thought free of the trust" 80, in its continuing role assupervisor, the "state is not confined by past allocation decisions which may beincorrect in light of current knowledge or inconsistent with current needs". 81658 P. 2d 709 at 712. Blumm, supra note 42 Ch.1 at 529 n.95 comments that continuousstate supervision has been emphasized also in Kootenai Envtl. Alliance v. PanhandleYacht Club 105 Idaho 622 at 631, 671 P. 2d 1085 at 1094 (1983); Caminiti v. Boyle 107Wash. 2d 662 at 672, 732 P.2d 989 at 995 (1987); In re Stone Creek ChannelImprovements 424 N.W. 2d 894 at 903 (N.D. 1988).Ibid.Ibid. at 728. For a discussion of cases imposing procedural requirements as part of thepublic trust, see Blumm, supra note 42 Ch.1 at 591 n. 86 and 592.Ibid. at 723.Ibid. at 728. See also Kootenai Envtl. Alliance, supra note 77 671 P. 2d at 1094, "thestate is not precluded from determining in the future that this conveyance is no longercompatible with the public trust".138The American public trust doctrine therefore embraces a procedural obligation toconsider the effects of proposed diversions on both the trust resource and valuesprotected by the trust. In the Mono Lake case, the court stressed that "an objective studyand reconsideration of the water rights in the Mono Basin is long overdue". The courtconsidered matters such as the effects of increased salinity of the lake, the decline of thelake's shrimp population and its corresponding impact on migratory birds using the lakeas well as the loss of nesting sites. The impact of the diversions on humans wasconsidered also, in particular the respiratory problems which could be caused by airbornesilt, further reductions to an already declining shrimp industry and, more generally, thefact that "the lake's recession obviously diminishes its value as an economic, recreationaland scenic resource. "82Most importantly however, it would appear that the procedural requirements imposed bythe public trust doctrine are not displaced by legislation; rather, the public trustcomplements statutory obligations and discretions. For example, in United PlainsmenAssociation v. North Dakota State Water Conservation Commission 247 N.W. 2d 457(1976) an injunction was sought against the State Water Conservation Commission andthe State Engineer restraining the State Engineer from issuing future water permits forpower and energy production until there was a comprehensive short and long-term planfor the conservation and development of the State's natural resources. The plaintiffs82 Ibid. at 716. For another example of factors to be considered by government in carryingout its public trust obligations, see Shokal v. Dunn 109 Idaho 330 at 339, 707 P. 2d 441at 450 (1985).139alleged that such a plan was required by both legislation and the public trust doctrine.The Supreme Court of North Dakota rejected the plaintiffs' argument that the relevantlegislation imposed mandatory planning responsibilities upon the State Engineer as acondition precedent to the issuance of water permits. However, the court then stated :The foregoing, however, does not relieve the Commission and State Engineer ofmandatory planning responsibilities with respect to the issuance of water permits... We agree with United Plainsmen that the discretionary authority of stateofficials to allocate vital state resources is not without limits but iscircumscribed by what has been called the Public Trust Doctrine."In describing the scope of the common law obligations imposed by the public trustdoctrine on the State Engineer, the court stated :In the performance of this duty of resource allocation consistent with the publicinterest, the Public Trust Doctrine requires, at a minimum, a determination of thepotential effect of the allocation of water on the present water supply and futurewater needs of this State. This necessarily involves planning responsibility. Thedevelopment and implementation of some short- and long-term planning capabilityis essential to effective allocation of resources [in accordance with the statutoryrequirement] "without detriment to the public interest in the lands and watersremaining" . 84Given that Canadian common law already recognises that the government has anaffirmative duty as guardian and protector of the public rights of navigation, it should berealistic to argue that any modern Canadian re-awakening of the public trust shouldembrace the administrative process requirement developed by the American courts.83 247 N.W. 2d 457 (1976) at 460. See also Kootenai Environmental Alliance v. PanhandleYacht Club 671 P. 2d 1085 (1983) at 1095.84 Ibid. at 462.140Despite the differences in legal culture between the United States and Canada, inparticular that Canadian courts are generally more traditional and conservative in theirapproach, as mentioned previously, the administrative process requirement is a logicalmodern extension of the public rights of navigation and fishing and should form part ofa revitalized Canadian public trust doctrine. Interestingly, in the unreported decision ofMann v. The Queen 85 , it was assumed that the public trust did impose certain processobligations on government. The plaintiffs, a group of British Columbia residents andcommercial fishermen alleged that the defendants (the Queen in right of Canada and inright of British Columbia; the Minister of Fisheries, the Fraser River Area Manager andthe Department of Oceans and Fisheries) had adopted a policy of preferring Indian claimsto the Fraser River Salmon Fishery over their own claims and those of other commercialfishermen. As part of this policy, the defendants had allocated 500,000 Fraser Riversockeye salmon to the holders of Indian food fishing licences in priority to the plaintiffsand other commercial fishermen.The plaintiffs claimed, inter alia, that such an allocation was in breach of the public trustor fiduciary duty under which the Queen in right of Canada and in right of BritishColumbia holds all Canadian fisheries. Significantly, the public trust or fiduciary dutywas alleged to require that:the fishery be managed and conserved for the benefit of all present andfuture generations;85 (1 June 1990), Vancouver A881092 (B.C.S.C.).141(ii) decisions with respect to the use and enjoyment of the fishery resource bymembers of the public be made in a fair and rational fashion, in the publicinterest, after following fair procedures, including hearing all interestedparties, and not be made in an arbitrary and capricious or discriminatorymanner; and(iii) no preference or priority be created in favour of any prior individual orgroup in and to the fishery or any portion thereof.The case has yet to be heard by the British Columbia Supreme Court, and so it isunknown whether the plaintiffs' arguments as to the existence and the scope of the publictrust with respect to fisheries will be upheld.' The plaintiffs' argument as to the formof the decision-making process is particularly interesting, and seems to extend theAmerican case law. The plea for more public participation in the decision-making processis however, consistent with developments in British Columbia, and elsewhere in Canada,to involve the public more directly in government decisions involving land use andresource allocation."86 The decision involved a chambers application by the defendants for (1) a declaration thatthe court should decline jurisdiction over the defendants and (2) an order that theplaintiffs' action be struck out on the grounds that it disclosed no reasonable claim or wasotherwise an abuse of process. MacKinnon J dismissed the application, ruling that theissue of breach of public trust or fiduciary obligation raises a constitutional issue withrespect to the rights of the federal and provincial Crown pertaining to the fisheries. Ina second application, (25 April, 1991) Vancouver A881092 (B. C.S . C.), Mackinnon Jdismissed the defendants' application to strike out the entire amended statement of claim.87 See for example : Commission on Resources and Environment, Report on a Land UseStrategy for British Columbia, August, 1992. The Report stresses that, "The traditional142Mention should, however, be made of the recent Canadian Supreme Court decision inFriends of the Oldman River v. Canada (Minister of Transport and Minister of Fisheriesand Oceans) [1992] 1 S.C.R. 3, 2 W.W.R. 193, which to a large extent has alreadypaved the way for due administrative consideration of environmental concerns. The courtheld that the Minister of Transport in his capacity as a decision maker under theNavigable Waters Protection Act 88 was subject to the Environmental Assessment andReview Process Guidelines Order and, accordingly, had to consider the environmentalimpacts of the proposed Oldman Dam. It is interesting to note that the Order did notspecifically include environmental criteria as part of decision-making powers underfederal legislation and yet it was still held to be mandatory.Of particular significance to the public trust doctrine is the Supreme Court's emphasison both the importance of the environment 89 and the need to include environmentalconsiderations in the decision-making process. Mr Justice La Forest, who delivered theapproach to land and resource allocation, based primarily on the responsibility ofstatutory decision-makers, is no longer accepted in British Columbia as necessarily thebest way to make decisions. One of the main reasons that the Commission on Resourcesand Environment was established is that the public feels alienated from the decision-making process, and is demanding a more significant and meaningful involvement." Seealso the various provincial reports referred to supra note 3, Introduction.88 R.S.C. 1985, c. N-22.89 La Forest J commences his majority judgment with the comment at 3, "The protectionof the environment has become one of the major challenges of our time". Furthermore,his definition of "environment" at 37 is a broad one, "I cannot accept that the conceptof environmental quality is confined to the biophysical environment alone; such aninterpretation is unduly myopic and contrary to the generally held view that the"environment" is a diffuse subject matter".143majority judgment, stressed that "[s]urely the potential consequences for a community'slivelihood, health and other social matters from environmental change are integral todecision making on matters affecting environmental quality, subject of course, to theconstitutional imperatives".' Referring to the Australian decision of MurphyoresIncorporated Ply Ltd v. Commonwealth of Australia (1976) 136 C.L.R. 1 (H.C.) (whichheld that the federal Minister of Minerals and Energy could consider an inquiry underthe Environmental Protection (Impact of Proposals) Act 1974- 1975 (Cth) in decidingwhether to approve an export licence for a mining company), La Forest J. concluded :The case points out the danger of falling into the conceptual trap of thinking ofthe environment as an extraneous matter in making legislative choices oradministrative decisions. Clearly, this cannot be the case. Quite simply, theenvironment is comprised of all that is around us and as such must be a part ofwhat actuates many decisions of any moment. Environmental impact assessmentis, in its simplest form, a planning tool that is now generally regarded as anintegral component of sound decision-making."The Oldman Dam case involved delegated legislation directed specifically towardsenvironmental impact assessment and review. Mr Justice La Forest's comments are not,however, confined to the Guidelines Order and are likely to have much broaderramifications for judicial constraints on administrative decisions concerning theenvironment, especially if the public trust doctrine is revitalized at Canadian commonlaw.90 [1992] 1 S.C.R. 3 at 37.91 Ibid. at 70-71.144Restrictions on Extinguishment and Alienation(i)^Legislation Required to Extinguish the Public TrustAs with the public rights of navigation and fishing considered in Chapters One and Two,it is clear from the Canadian public trust cases concerning highways and the Americanpublic trust cases generally that legislation is usually required to modify the public trust.In People v. California Fish Co. (1913) 166 Cal. 576, 138 P. 79, the court stated :[S]tatutes purporting to authorize an abandonment of ... public use will becarefully screened to ascertain whether or not such was the legislative intention,and that intent must be clearly expressed or necessarily implied. It will not beimplied if any other inference is reasonably possible. And if any interpretation ofthe statute is reasonably possible which would not involve a destruction of thepublic use or an intention to terminate it in violation of the trust, the courts willgive the statute such interpretation.'This approach mirrors the principle in Higginson v. Treasurer & Sch. House Commrsof Boston 212 Mass. 583, 99 N.E. 525 that public interest lands devoted to one publicuse cannot be diverted to another inconsistent public use without plain and explicitlegislation authorizing the decision. The rule has been consistently applied by Americancourts. 93138 P. 79 (1913) at 88.See for example : City of Berkeley v. Superior Court of Alameda 26 Cal. 3d 515, 606P. 2d. 362 (1980); National Audubon Society v. Superior Court of Alpine City 658 P. 2d709 (Cal. 1983); Gould v. Greylock Reservation Commission 350 Mass. 410, 215 N.E.2d 114 (1966); CWC Fisheries, Inc. v. Bunker 755 P. 2d 1115 (Alaska 1988) andRobbins v. Dept. of Public Works 355 Mass. 328, 244 N.E. 2d at 577 (1969). But seeKootenai Envtl. Alliance v. Panhandle Yacht Club 671 P. 2d 1085 (Idaho 1983)especially at 1091 and 1095. The court disagreed at 1091 that trust resources could bealienated only by express legislative mandates. However, the court stressed that "publictrust resources may only be alienated or impaired through open and visible actions,where the public is in fact informed of the proposed action and has substantialopportunity to respond to the proposed action before a final decision is made." The court145Interestingly, this is also the rule with respect to extinguishment of aboriginal interestsin land. In the recent unreported British Columbia Court of Appeal decision inDelgamuukw v. The Queen, " the court affirmed that a clear and plain legislativeintention is required to extinguish aboriginal title. 95 Mr Justice Macfarlane, Williamsand Taggart JJ. concurring, stated that this requirement "stems from the specialrelationship between the Crown and aboriginal people which has existed since theassertion of sovereignty and which is particularly apparent in relation to Indian interestsin land". 96 Referring to the fact that the fiduciary obligation of the Crown to aboriginalpeoples provides a "guiding principle" in interpreting section 35 of the Constitution Act,1982, he argues that it must also "bear on the proper test to be applied to legislationpurporting to extinguish aboriginal title".' Accordingly, he concludes :In my view, the honour of the Crown, arising from its role as the historicprotector of aboriginal lands, requires a clear and plain intent to extinguishaboriginal title that is express or manifested by unavoidable implication ... Theclear and plain test, whether applied to vested rights, property rights, oraboriginal rights, ensures respect for and protection of those special rights.Although aboriginal rights cannot be so easily described in terms of Englishproperty law, they are to be regarded as unique and important. But, like vestedrights and property rights, they may be impaired or extinguished with or withoutcompensation by a clear and plain exercise of competent legislative power.However, the legislative intent to do so will be implied only if the interpretationnoted also that "decisions made by non-elected agencies will be subjected to closerscrutiny than will legislative decisionmaking."94 (25 June, 1993) Vancouver CA 013770 (B.C.C.A.).95 Ibid. at 47, per Macfarlane J and at 181, per Lambert J.96 Ibid. at 47.97 Ibid. at 48.146of the statute permits no other result."This reasoning is interesting because if the source of the "clear and plain legislation"requirement is the fiduciary obligation of the Crown to aboriginal peoples, then the samerequirement should apply in relation to the Crown's fiduciary obligation to the publicwith respect to public trust resources. As guardian and protector of public trust lands,the government should be similarly restricted in its ability to extinguish trust resources.Furthermore, as with aboriginal interests in land, the "clear and plain legislation"requirement should apply regardless of whether the public's interest in public trust landis a property right.(ii)^Public Purpose and Substantial ImpairmentIn addition to the requirement that conveyances of trust property must have legislativeauthority, it appears that there are further restrictions on alienation. Although decided in1892, the case of Illinois Central Railroad Company v. Illinois (1892) 146 U.S. 387, 13S.Ct. 110 (discussed in some detail in Chapter Two) is consistently cited in Americancases as authority for the following propositions :1.^the state, as administrator of the public trust, does not have the power toabdicate its role as trustee in favour of private parties;" andIbid. at 48.See for example City of Berkeley v. Superior Court of Alameda 606 P. 2d 362 at 365;Priewe v. Wisconsin State Land & Improvement Co. 93 Wis. 534, 67 N.W. 918 (1896),aff d 79 N.W. 780 (1899); McLennan v. Prentice 55 N.W. 764. Referring to trust lands,the court stated at 770 "The state has no proprietary interest in them, and cannot abdicateits trust in relation to them".1472.^trust land can be granted to private parties free of the public trust only if:the proposed uses are consistent with trust purposes; orthe grants do not substantially impair the public interest inthe trust resources remaining. 1'The American cases concerning both the public purpose requirement and substantialimpairment prohibition have not resulted in a tidy set of principles governing restrictionson modification of public trust interests - as Sax notes "the case law has not developedin any way that permits confident assertions about state power." ioi Lazarus identifiesa variety of approaches to the public purpose requirement, ranging from a generalrelationship between the proposed governmental action and a legitimate public purpose,to a requirement that the purpose "have some connection with the substantive concernsof the trust doctrine" . 102 In some instances this has required a connection to thetraditional trust purposes of navigation, commerce and fishing, which since theCalifornian decisions of Marks v. Whitney, supra and Mono Lake, supra, includerecreational and ecological values. As previously mentioned in Chapter Two, the courtin the Mono Lake case stressed that the purpose of the proposed activity on trust property100 See for example : City of Berkeley, supra at 365; National Audubon Society, supra note92 at 721; CWC Fisheries, Inc., supra note 92 at 1119; Kootenai Envtl. Alliance, supranote 92 at 1089; State v. Public Service Commission 81 N.W. 2d 71 (1957) at 74, citingMerwin v. Houghton 146 Wis. 398 at 410, 131 N.W. 838 and, Orion Corp. v. State ofWashington 747 P. 2d 1062 (Wash. 1987) at 1073.101 Sax, supra note 1 Ch.1 at 486.102 Lazarus, supra note 1 Ch.1 at 651.148had to be more than a public purpose such as increasing tax revenues or commercial useof the property - the purpose of the activity had to be connected more closely to thepublic trust.Thus, the public trust is more than an affirmation of the state power to use publicproperty for public purposes. It is an affirmation of the duty of the state to protectthe people's common heritage of streams, lakes, marshlands and tidelands,surrendering that right only in rare cases where the abandonment of that right isconsistent with the purposes of the trust.'Regardless however, of the purpose requirement, Lazarus concludes that "the tests haveproved susceptible to flexible application"' and have even embraced developing apublic trust water resource to build an airport runway, one judge arguing that the airportwould promote not only commerce, but possibly also navigation."The prohibition against substantial impairment of trust resources embraces theadministrative process requirements referred to earlier in this Chapter. Namely, prior toalienating trust resources the government must consider the potential impacts of theproposed activity on the public trust. Although Lazarus notes that some courts haveprohibited any real harm to the public trust, he argues that in recent decisions, the courts"have recognized that destruction of trust resources is sometimes necessary, andtherefore, they will impose a public trust standard that calls for heightened administrative103 658 P. 2d 709 (Cal. 1983) at 724.'4 Lazarus, supra note 1 Ch.1 at 651.105 Ibid. at 652, citing Morse v.Oregon Div. of State Lands 285 Or. 197 at 217, 590 P. 2d709 at 716 (1979).149justification for the action."' The Mono Lake case is a good example of this approach.(iii) Grantee Takes Subject to the Public TrustGenerally, however, as with the public rights of navigation and fishing, a grantee takessubject to the public trust. In the Mono Lake case, supra, the court referred to "thoserare instances in which a grantee may acquire a right to use a former trust property freeof trust restrictions. 1 ' In all other cases, the grantee held the trust property subject tothe trust. The grantee's interest was in the nature of a "vested right to the servient estate(the right of use subject to the trust)i' and the grantee could "claim no vested rightto bar recognition of the trust or state action to carry out its purposes".' In a similarvein, other courts have emphasized that all conveyances of trust property are subject tothe state's retained supervisory authority, 110 or that private fee simple property rightsare "impressed" with the trust.'"106107108109110Ibid. at 654.658 P. 2d 709 (Cal. 1983) at 723.Ibid.Ibid.Lazarus, supra note 1 Ch.1 at 655 n. 159 citing United States v. 1.58 Acres of Land 523F. Supp. 120 (D. Mass 1981) at 124; Bortz Coal Co. v. Commonwealth 2 Pa. Commw.441 at 453-454, 279 A. 2d 388 at 396 (1971).111 Lazarus, ibid., at n. 160 citing People v. California Fish Co. 166 Cal. 576 at 588, 138P. 79 at 84 (1913); State v. Superior Court (Lyon) 29 Cal. 3d 210 at 228, 625 P. 2d 239at 250 (1981). See also Sax, supra note 1 Ch.1 at 487; "since the state has an obligationas trustee which it may not lawfully divest, whatever title the grantee has taken isimpressed with the public trust and must be read in conformity with it."150As mentioned earlier, the government has been an active proponent of the public trustdoctrine. Lazarus comments that the public trust doctrine has served as a theory of"enhanced sovereign authority", enabling government to assert that "the doctrine limitsthat nature of valid private property rights in those resources, rendering permissablegovernmental measures that impinge on those private interests."' Interestingly, thisexperience mirrors the efforts of Queen Elizabeth and the Stuarts (discussed briefly inChapter One) to assert the prima facie presumption of Crown ownership in the foreshoreand thereby defeat private title. However, in contrast to Thomas Digges' efforts toestablish this presumption, there is significantly more legal American authority to supportclaims by either government or private citizens that private title to public trust propertyis circumscribed by the public trust. The theory that the grantee of trust property has novested right or interest in that property has achieved prominence in the United States asa defence to expropriation of property claims, the argument being that because publictrust rights both pre-date and survive grants of trust property, action taken to enforce thetrust does not constitute an unconstitutional expropriation of property. Needless to say,the use of the public trust doctrine as a defence to expropriation claims has beencontroversial and has sparked much academic discussion and debate.'"2 Ibid.113 See for example : Huffman, "Avoiding the Takings Clause Through the Myth of PublicRights : The Public Trust and Reserved Rights Doctrines at Work" (1987) 3 J. Land Use& Envtl. L. 171; Comment, "The Fifth Amendment as a Limitation on the Public TrustDoctrine in Water Law" (1984) 15 Pac. L.J. 1291; Lazarus, supra note 1 Ch.1 at 648-649 and 655; Blumm, supra note 42 Ch.1 at 584-587; Hunter, supra note 51 Ch.2. Fora recent example of the public trust as a defence to a takings claim, see Orion Corp. v.State of Washington 747 P. 2d 1062 (Wash. 1987).151This debate could have particular relevance to British Columbia and the currentcontroversy over the provincial government's "obligation" to pay compensation to miningcompanies for restriction or extinguishment of mining rights by allocation of mininglands to park status. The contentious debate over the fate of the Tatshenshini River andthe issue of compensation payable to Geddes Resources is a topical example of thiscontroversy. 114 In Canada, it would appear that in the absence of contrary legislation,compensation must be paid to mining companies in such instances. 115 However, if apublic trust is recognized over such property, it could be argued, based on the Americanauthorities and the navigation and fishing cases, that because the mining companies neverreceived a fully vested right to the property in question, no compensation is payable. Asgrantees of public trust property, their title was subject to the public trust and any actiontaken in promotion of the trust and the values protected by the trust, such as theestablishment of a public park, would not give rise to an expropriation of property andtherefore, no compensation would be payable. The political consequences of denyingcompensation in such cases would be significant and should not be easily discounted. Thepublic trust doctrine could however, serve to justify a significant reduction in the amount114 For a detailed review of the issues involved, see : Commission on Resources andEnvironment (British Columbia), Interim Report on Tatshenshini/Alsek Land Use -Volume One : Report and Recommendations, January, 1993. The British ColumbiaProvincial Government decided to declare the area a provincial park, rather than permitthe proposed copper mine to proceed. This prompted the local mining industry tothreaten an exodus to South America and more "mining friendly" environments; anexodus which apparently has been silently occurring over the past few years anyway.115 The Queen in Right of British Columbia v. Tener (1985) 17 D.L.R. (4th) 1 (S.C.C.),applied in Casamiro v. British Columbia (1991) 80 D.L.R. (4th) 1 and Cream SilverMines v. British Columbia (1991) 85 D.L.R. (4th) 269, under appeal.152of compensation payable in such instances.(iv) Prohibition Against Alienation of Entire Trust ResourceA further possible restriction on alienation of public trust resources is the extent to whichthe state can extinguish an entire public trust resource. While it is generally recognizedthat the state is not required to preserve public trust resources as inviolate and thatalterations to and diversions of public trust resources are permissable,' (subject tothe purpose requirement and substantial impairment restrictions mentioned earlier), itwould appear that the state is not empowered to destroy an entire trust resource. In theIllinois Central case, supra, the Supreme Court held that the legislature could not conveythe entire waterfront of the city to a private person free of the trust, stressing that thelegislature did not have the power to "give away nor sell the discretion of itssuccessors" . 117 Similar comments were expressed in the earlier American case ofArnold v. Mundy 6 N.J.L. 1 (1821). The court stressed that the state "cannot make adirect and absolute grant, divesting all the citizens of their common right; such a grant,or a law authorizing such a grant, would be contrary to the great principles of our116 See for example : State v. Public Service Commission 81 N.W. 2d 71 (1957) at 74; Cityof Milwaukee v. State 193 Wis. 423 at 451, 214 N.W. 820 at 830, "It is not the law, aswe view it, that the state, represented by its Legislature, must forever be quiescent in theadministration of the trust doctrine, to the extent of leaving the shores of Lake Michiganin all instances in the same condition and contour as they existed prior to the advent ofthe white civilization in the territorial area of Wisconsin."117 Illinois Central, supra, 146 U.S. at 460, 36 L.Ed. at 1045.153constitution, and never could be borne by a free people. X 118 Likewise in State v. PublicService Commission 275 Wis. 112, 81 N.W. 2d 71 (1957) the court affirmed that whilethe public trust doctrine "does not prevent minor alterations of the natural boundariesbetween water and land', the state was restricted from destroying the whole of apublic trust resource; "[Oven for a public purpose, the state could not change an entirelake into dry land nor alter it so as to destroy its character as a lake" .120This prohibition potentially has application to clear-cut logging practices. If the land inquestion is held to be public trust property, the argument could be raised that as clear-cutting destroys the character of the forest as a forest, the action is illegal at commonlaw. This argument is unlikely to succeed, however, if the clear-cutting is carried outover small and isolated patches of forest - reasonably large areas of public trust landwould need to be involved for this prohibition to be invoked with any likelihood ofsuccess.(v) Prohibition Against Abdication by State of its Role as TrusteeConnected to the prohibition against alienation of an entire public trust resource is theprohibition against abdication of the trust. As mentioned earlier, the state as administratorof the public trust does not have the power to abdicate its role as trustee in favour of118 6 N.J.L. 1 (1821) at 19.119 81 N.W. 2d 71 (1957) at 74.120 ^citing In re Crawford County Levee & Drainage Dist. 182 Wis. 404, 196 N.W.874.154private parties. In Priewe v. Wisconsin State Land & Improvement Co. 79 N.W. 780(1899), the court stated that :The legislature has no more authority to emancipate itself from the obligationresting upon it which was assumed at the commencement of its statehood, topreserve for the benefit of all the people forever the enjoyment of the navigablewaters within its boundaries than it has to donate the school fund or state capitolto a private purpose. It is supposed that this doctrine has been so firmly rootedin our jurisprudence as to be safe from any assault that can be made upon it.'This prohibition has been affirmed recently in the case of Caminiti v. Boyle 107 Wash.2d 662, 732 P. 2d 989 (1987). The court stressed that "[t]he Legislature has never hadthe authority ... to sell or otherwise abdicate state sovereignty or dominion over suchtidelands and shorelands. 11122The Public Trust as a Means of Enhancing the Special Nature of Trust PropertyAs mentioned in the Introduction to this Chapter, the fact that the distinctive features ofthe public rights of navigation and fishing are re-affirmed and expanded under the publictrust doctrine reinforces the conclusion reached in Chapter One (with reference to bothlaw and economics) that certain resources and the public rights with respect to thoseresources are "special" and inherently public in nature. In a time of ever decreasing121 79 N.W. 780 (1899) at 781.122 107 Wash. 2d 662 at 666. Sax, supra note 1 Ch.1 at 486 also recognizes the restrictionagainst total abdication, noting that while there is no general prohibition against thedisposition of trust properties even on a large scale, "no grant may be made to a privateparty if that grant is of such amplitude that the state will effectively have given up itsauthority to govern, but a grant is not illegal solely because it diminishes in some degreethe quantum of traditional public uses."155natural resources, the public trust serves to emphasize the importance of the naturalenvironment. There is a recognition, as Justice Holmes once wrote of a river, that apublic trust resource is "more than an amenity, it is a treasure". 123 Regardless ofwhether it is a "true" trust or not, the very words "public trust" enhance this recognition.Classifying certain resources as "public trust resources" both reinforces the perceptionof these resources as "special" and, emphasizes that government has certain fiduciaryresponsibilities to the public in its management of those resources.Significantly, the public trust also facilitates an ecological approach to trust resources -the special value of trust resources is not to be viewed in isolation, but as part of a"common property" and a "common future". Many commentators are now arguing thatthis type of recognition is an "ecological imperative". As Hunter remarks,Historically, we have changed the environment to fit our conceptions of property.We have fenced, ploughed and paved. The environment has proven malleable,and to a large extent still is. But there is a limit to this malleability, and certaintypes of ecologically important resources ... can no longer be destroyed withoutenormous long-term effects on environmental and therefore social stability. Toecologists, the need for preserving sensitive resources does not reflect valuechoices but rather is the necessary result of objective observations on the laws ofnature. 124This broader view of public trust resources is particularly evident in the Californian casesof Marks v. Whitney 491 P. 2d 374 (1971), State v. Superior Court (Lyon) 29 Cal. 3d210, 625 P. 2d 239 (1981), State v. Superior Court (Fogarty) 29 Cal. 3d 240, 625 P. 2d123 ^Jersey v. New York 283 U.S. 336 (1931) at 342, cited in Dunning, supra note 42Ch.1 at 523.124 Hunter, supra note 2 Ch.1 at 315.156256 (1981) and National Audubon Society v. Superior Court (the "Mono Lake" case)considered in Chapter Two. Not only did the courts affirm that recreational and aestheticvalues formed part of the public trust, as did preservation of trust properties in theirnatural state as ecological units, the courts focused on trust resources as part of a broaderecosystem. The judicial environmental assessment conducted in these cases serves as aguide both to government and administrative authorities as to the matters to be taken intoaccount in fulfilling the administrative process obligation referred to earlier in thisChapter. Ecological questions would therefore appear to constitute an integral part ofadministrative decisions affecting or likely to affect public trust resources.If, as has been argued in this Chapter and Chapter One, the public trust and itsprecursor, the public rights of navigation and fishing and the public rights with respectto highways, apply to certain resources because they are special in nature, it would seeminevitable that any Canadian version of the doctrine would expand to embrace other"special" resources in much the same way as the American public trust has done, or isdoing. Hunter in particular advocates focusing on the nature of the property in question,arguing as part of a broader ecological theory of property :Courts, when faced with a public trust claim, look to the historical developmentof property in the state to see whether the property is subject to a trust. Such aninquiry obscures the real issue of which types of property should be held incommon and why. The answer should not lie in an analysis of current reviews ofland ... Nothing inherent in the public trust doctrine necessitates a purelyhistorical mode of analysis or its current narrowness 125125 Hunter, supra note 51 Ch.2 at 371. He remarks at 374, "If one of the purposes of thepublic trust is to protect the land's ecological integrity, then ecology should be relevant157Accordingly, rather than adopting a narrow, legalistic approach focusing on whichresources have historically been classified as trust resources, the approach should be toask whether, according to current values, the resources are special in nature, and ill-suited or inappropriate for private exploitation. The public trust could, therefore expandto embrace wetlands, endangered species, rare examples of old growth forest, fragileAlpine grasslands and so on.Since its inception, the public trust doctrine has adapted to incorporate and reflectchanging perceptions of the public interest. As discussed in Chapter Two, the public trustwith respect to highways was redefined in the United States in the late nineteenth centuryto facilitate economic development. Now, however, the focus of the American publictrust doctrine is increasingly directed towards protection, preservation and conservationof the diminishing natural environment. This focus reflects broad based public concernfor the environment. Governments and government authorities in Canada are nowrecognizing this public interest in the natural environment. In the Interim Report onTatshenshini/Alsek Land Use 126, the Commission on Resources and Environmentstated:The way we define and evaluate wilderness may also alter over time, as society'sneeds and perspectives change. In recent decades, the diminishing amount of landto defining which lands are subject to the trust." For similar arguments advocatingextensions of the public trust to other resources for ecological reasons, see Rieser, supranote 51 Ch.2 and Meyers, supra note 51 Ch.2.126 Commission on Resources and Environment, Vol. 1 - Report and Recommendations,January, 1993.158that is unchanged by human use has dramatically changed social perspectives ofthe nature and value of wilderness. The increasing scarcity of wilderness hasincreased its value, in the eyes of many. In addition, the value of wilderness washistorically associated primarily with its ability to provide outstanding recreationexperiences, especially appreciation of scenery; today, there is an increasingbelief that wilderness should be preserved not just for human use, but also for itsown sake and for its capacity to preserve nature, including landforms,ecosystems, biodiversity, and wildlife habitat and populations. Each of theseaspects contributes to wilderness qualities, and the whole is seen as greater thanthe sum of the parts.'The relevance of the public trust doctrine in a modern society is that the doctrine canembrace and enhance changing public perceptions of the importance and role of thenatural environment. For the reasons outlined above, the doctrine lends itself particularlywell to the notion that certain resources are special and public in nature.ConclusionAlthough somewhat of an enigma, the public trust is not an archaic legal doctrine. Asthe American experience clearly indicates, the doctrine is incredibly flexible and capableof adapting to meet increasing public concerns about the environment. Although thedoctrine mirrors the distinctive features of its precursor, the public rights of navigationand fishing, the doctrine has expanded in the United States in modern times to providelegal standing to private citizens and to impose an administrative decision-making processon government in its management of public trust resources.Because Canadian courts have both recognized the public trust doctrine and continuously127 Ibid. at 25-26.159affirmed the public rights of navigation and fishing, predicting the consequences ofrecognition of the doctrine at Canadian common law is not a purely hypotheticalexercise. At the very least, any Canadian revival of the doctrine should embrace thedistinctive features of the public rights of navigation and fishing, namely : the granteegenerally takes subject to the public rights, the government has an affirmative duty ofcare and protection, incidental rights are protected and in addition to other restrictions,legislation is required to modify or extinguish the public rights. In addition, if thedoctrine is to have meaning in the age of expanding government and multipleadministrative authorities, the doctrine should embrace the process obligations recentlyimposed by American courts.The public trust doctrine will not be a panacea for all environmental ills. It is unlikelyto expand in the way that the American doctrine has done given that Canadians are lesslitigious than their American neighbours and Canadian courts tend to be moreconservative and traditional in their approach. However, while Canadian environmentallegislation remains deficient, there is still an important place for a revitalized public trustdoctrine at Canadian common law.160CONCLUSIONThe public trust is as fluid as the waters from whence it came. It has flowed through thecenturies in various forms, crossed countries, cultures and academic disciplines andadapted itself to the local terrain. One reason for the continued existence of the doctrinehas undoubtedly been this incredible flexibility. However, the real key to the survival ofthe public trust doctrine, and its predecessor the public right of navigation and fishing,is the inherent recognition that certain resources are special in nature. Although thepermissable allowance of private ownership of trust resources has varied, Roman,English, American and Canadian law have consistently recognized and upheld the specialand public nature of resources such as water. It is, therefore, hardly surprising that thepublic trust doctrine is both resurfacing in an age of increasing environmental concernand recognition of the dangers of continued environmental degradation and extendingbeyond its amphibious boundaries. Regardless of the potential consequences ofrecognition of the public trust doctrine at Canadian common law considered in ChapterFour, at the very least the public trust doctrine serves to remind both government andprivate citizens alike that present and future generations have an interest in our naturalenvironment that should be recognized and protected.161BIBLIOGRAPHYArticlesR.L. Abrams, "Thresholds of Harm in Environmental Litigation : The MichiganEnvironmental Protection Act as Model of a Minimal Requirement" (1983) 7 H.E.L.R.107H.R. Bader, "Anataeus and the Public Trust Doctrine : A New Approach to SubstantiveEnvironmental Protection in the Common Law" (1992) 19:3 B.C. Envtl. Aff. L. Rev.749R.H. Bartlett, "The Fiduciary Obligation of the Crown to the Indians" (1989) 53 Sask.L. Rev. 301M.C. Blumm, "Public Property and the Democratization of Western Water Law : AModern View of the Public Trust Doctrine" (1989) 19 Envtl. L. 575T.P. Brady, "But Most of it Belongs to Those Yet to be Born : The Public TrustDoctrine, NEPA, and the Stewardship Ethic" (1990) 17:3 B.C. Envtl. Aff. L. Rev. 621B.S. Cohen, "The Constitution, the Public Trust Doctrine and the Environment" (1970)Utah L.Rev. 388Comment, "The Fifth Amendment as a Limitation on the Public Trust Doctrine in WaterLaw" (1984) 15 Pac. L. J. 1291Comment, "The Public Trust in Tidal Areas : A Sometime Submerged Doctrine" (1970)79 Yale L.J. 762P. Deveney, "Title, Jus Publicum and the Public Trust : An Historical Analysis" (1976)1 Sea Grant L.J. 13H.C. Dunning, "The Public Trust : A Fundamental Doctrine of American Property Law(1989) 19 Envtl. L. 515H.C. Dunning, "The Significance of California's Public Trust Easement for CaliforniaWater Rights Law" (1980) 14 U.C.D.L.Rev. 357S.A.G. Elgie, "Environmental Groups and the Courts : 1970-1992" in G. Thompson,M.L. McConnell & L.B. Huestis, eds., Environmental Law and Business in Canada(Canada Law Book : Aurora, Ontario, 1993) at 202162G. Hardin, "The Tragedy of the Commons" in E. Hughes, A. Lucas & W. Tilleman,Environmental Law and Policy (Emond Montgomery Publishers Ltd : Toronto, Canada,1992) at 7: 11-7: 12J.L. Huffman, "A Fish Out of Water : The Public Trust Doctrine in a ConstitutionalDemocracy" (1989) 19 Envtl. L. 527J.L. Huffman, "Avoiding the Takings Clause Through the Myth of Public Rights : ThePublic Trust and Reserved Rights Doctrines at Work" (1987) 3 J. Land Use & Envtl. L.171C. Hunt, "The Public Trust Doctrine in Canada" in J. Swaigen, ed. Environmental Rightsin Canada (Toronto : Butterworths, 1981) at 151D.B. Hunter, "An Ecological Perspective on Property : A Call for Judicial Protectionof the Public's Interest in Environmentally Critical Resources" 12 Harv. Envtl. L. Rev.311R.W. Johnston, "Water Pollution and the Public Trust Doctrine" (1989) 19 Envtl. L. 485R.J. Lazarus, "Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine" (1986) 71 Iowa L.Rev. 631G.J. MacGrady, "The Navigability Concept in the Civil and Common Law : HistoricalDevelopment, Current Importance, and Some Doctrines That Don't Hold Water" (1975)3:4 Fla. St.U.L.Rev. 511M.K. McCurdy, "The Public Trust Protection for Wetlands" (1989) 19 Envtl. L. 683G.D. Meyers, "Variation on a Theme : Expanding the Public Trust Doctrine to IncludeProtection of Wildlife" (1989) 19 Envtl.L. 723V.P. Nanda & W.K. Ris, Jr. "The Public Trust Doctrine : A Viable Approach toInternational Environmental Protection" (1976) Ecology L.Q. 291A. Rieser, "Ecological Preservation as a Public Property Right : An Emerging Doctrinein Search of a Theory" (1991) 15:2 H.E.L.R. 393S.W. Reed, "The Public Trust Doctrine : Is it Amphibious ?" (1986) J. Envtl. L. &Litig. 107S.W. Reed, "Fish Gotta Swim : Establishing Legal Rights to Instream Flows Through163the Endangered Species Act and the Public Trust Doctrine" (1991-1992) 28 Idaho L.Rev. 645C. Rose, "The Comedy of the Commons : Custom, Commerce, and Inherently PublicProperty" (1986) 53:3 U. Chi. L. Rev. 711J.L. Sax, "The Public Trust Doctrine in Natural Resources Law : Effective JudicialIntervention" (1970) 68 Mich.L.Rev. 471J.L. Sax, "Liberating the Public Trust Doctrine From its Historical Shackles" (1980) 14U.C.D.L. Rev. 195J.L. Sax & R.L. Conner, "Michigan's Environmental Protection Act of 1970 : AProgress Report" (1972) 70 Mich. L. Rev. 1003M. Selvin, "The Public Trust in American Law and Economic Policy, 1789-1920" (198)Wis.L.Rev. 1403J.S. Stevens, "The Public Trust : A Sovereign's Ancient Right Becomes the People'sEnvironmental Right" (1980) 14 U.C.L.D.L.Rev. 195E.J. Weinrib, "The Fiduciary Obligation" (1975) U.T.L.J. 1C.F. Wilkinson, "The Public Trust in Public Land Law" (1980) 14 U.C.L.D. L. Rev.269C.F. Wilkinson, "The Headwaters of the Public Trust : Some Thoughts on the Sourceand Scope of the Traditional Doctrine" (1989) 19 Envtl. L. 425BooksD.W. Bromley, ed., Making The Commons Work - Theory, Practice and Policy (SanFrancisco, California : Institute for Contemporary Studies, 1992)Halsbury's Laws of England, vol. 21, 4th ed. (London : Butterworths, 1981)Halsbury's Laws of England, vol. 49, 4th ed. (London : Butterworths, 1984)G.C. LaForest, Water Law in Canada : The Atlantic Provinces (Ottawa : InformationCanada, 1973)W.A. Hunter, Roman Law (London : Sweet & Maxwell, Ltd., 1897)164S. Moore, A History of the Foreshore and the Law Relating Thereto, 3rd ed.(London : Stevens & Haynes, 1888)W.J. Mowbray, Lewin on Trusts, 16th ed., (London : Sweet & Maxwell, 1964)W.H. Rodgers, Jr., Environmental Law, vol. 1 (St. Paul, Minnesota : West PublishingCo., 1986)T.C. Sandars, ed. & trans., The Institutes of Justinian, 8th ed., (London : Longmans,Green & Co., 1888)L.A. Sheridan & G.W. Keeton, The Law of Trusts, 11th ed., (Chichester, England :Barry Rose Publishers Ltd, 1983)G.C. Stevenson, Common Property Economics - A General Theory and Land UseApplications (Cambridge : Cambridge University Press, 1991)J.A.C. Thomas, ed. & trans., The Institutes of Justinian (Cape Town : Juta & CompanyLtd., 1975)V.J. Yannacone, Jr. & B.S. Cohen, Environmental Rights and Remedies, vol. 1(Rochester, New York : The Lawyers Co-Operative Publishing Co., 1972)English Cases Administrator of German Property v. Knoop [1933] Ch 439Alfred F. Beckett Ltd v. Lyons [1967] Ch 449A.G. for B. C. v. A. G. for Canada, A.G. for Ontario [1914] A.C. 153 (Privy Council)A.G. v. Burridge (1822) 10 Price 350A.G. v. Nissan [1969] 1 All ER 629A.G. v. Johnson (1819) 2 Wils Ch 87, 37 ER 240A.G. v. Parmeter (1811) 10 Price 378, 147 ER 345A.G. of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd [1915] AC 599 (PrivyCouncil)165A.G. v. Terry (1874) 9 Ch App 423A.G. v. Tomline (1880) 14 Ch.D. 58A.G. v. Wright [1897] 2 QB 318Bagshaw v. Buxton Local Board of Health (1875) 1 Ch D 220Bickett v. Morris (1866) LR 1 Sc & Div 47Blundell v. Catterall (1821) 5 B & Ald 268, 106 ER 1190Bourke v. Davis (1889) 44 Ch D 100Brinckman v. Matley [1904] 2 Ch 313Bristow v. Cormican (1878) 3 App. Cas. 641Carter v. Murcot (1768) 4 Burr 2162, [1558-1774] All ER 620Civilian War Claimants Association Ltd v. R. [1932] AC 14Colchester Corporation v. Brooke (1845) 7 QB 339Dawes v. Hawkins (1860) 6 CBNS 848Fitzharding (Lord) v. Purcell [1908] 2 Ch 139Fitzwalter's (Lord) Case (1674) 1 Mod Rep 105Gann v. Free Fishers of Whitstable (1865) 11 HL Cas. 192, 11 ER 1305Gerring v. Barfield (1864) 11 LT 270Goodson v. Richardson (1874) 9 Ch App 221Henly v. Mayor of Lyme (1828) 5 Bing. 91, 130 ER 995Henwick v. Essex Catchment Board [1952] 1 All ER 765Hudson v. Tabor 2 QBD 290Isle of Ely Case (1609) 10 Co.Rep. 141a, 77 ER 1139166lveagh v. Martin [1961] 1 QB 232Johnston v. O'Neill [1911] AC 552Kearns v. Cordwainers' Co. (1859) 6 CBNS 388, 161 ER 508Kinloch v. Secretary of State for India in Council (1882) 7 App. Cas. 619Lamb v. Newbiggin (1844) 1 Car. & Kir 549Lichester (Earl) v. Raishleigh (1889) 61 LT 477, 5 TLR 739McPhail v. Doulton (1971) AC 424Malcomson v. O'Dea (1863) 10 HL Cas 593, 11 ER 1155Miles v. Rose (1814) 5 Taunt. 705, 128 ER 868Murphy v. Ryan (1868) IR 2 CL 143Orr Ewing v. Colquhoun (1877) 2 App Cas 839Reece v. Miller (1882) 8 QBD 626 (DC)R. v. Betts (1850) 16 QB 1022R. v. Montague (1825) 4 B & C 598, 107 ER 1183R. v. Platts (1880) 49 LJQB 848R. v. Smith (1780) 2 Doug KB 441, 99 ER 283Rustomjee v. The Queen (1876) 2 Q.B.D. 69Sim E. Bak v. Ang Yong Huat [1923] AC 429 (PC)Symes & Jaywick Assoc. Properties v. Essex Rivers Catchment Board[1937] 1 KB 548Tate & Lyle Industries Ltd v. Greater London Council [1983] 2 AC 509Tate v. Williamson (1866) 2 Ch App 55Tito v. Waddell (No.2) [1977] 3 All ER 129167Town Investments Ltd v. Dept. of the Environment [1978] AC 359Tufton v. Sperni [1952] 2 TLR 516Turner v. Ringwood Highway Board (1870) LR 9 Eq 418Warren v. Matthews (1706) 6 Mod. 73, 91 ER 312Williams v. Wilcox (1838) 8 AD & ED 314, 112 ER 857American CasesArnold v. Mundy 6 N.J.L. 1 (1821)Baldwin v. Fish & Game Cmsn of Montana 436 U.S. 371, 56 L. Ed 2d 354 (1978)Caminiti v. Boyle 107 Wash. 2d 662, 732 P. 2d 989 (1987)Cinque Bambini Partnership v. Mississippi 491 So. 2d 508 (Miss. 1986)City of Berkeley v. Superior Court 26 Cal. 3d 515, 606 P. 2d 362 (1980)City of Milwaukee v. State 193 Wis. 423, 214 N.W. 820Clark v. Waltham 128 Mass. 567Clements v. Chicago Prk District 96 Ill. 2d 26, 449 N.E. 2d 81 (1983)CWC Fisheries, Inc. v. Bunker 755 P. 2d 1115 (Alaska 1988)District of Columbia v. Air Florida, Inc. 750 F. 2d 1077 (D.C. Cir. 1984)Douglas v. Seacoast Products Inc. 431 U.S. 265, 52 L. Ed 2d 304 (1977)Fields v. Wilson 186 Ore. 491, 207 P. 2d 153 (1949)Geer v. Connecticut 161 U.S. 519 (1896)Gould v. Greylock Reservation Commission 350 Mass. 410, 215 N.E. 2d 114 (1966)Higginson v. Slattery 212 Mass 583, 99 N.E. 523 (1912)168Holt v. City of Summerville 127 Mass. 408 (1879)Hughes v. Oklahoma 441 U.S. 322, 60 L. Ed 250, 99 S. Ct. 1727 (1979)Idaho Forest Industries v. Hayden Lake Watershed Improvement District 112 Idaho 512,733 P. 2d 733 (Idaho 1987)Illinois Central Railroad v. Illinois 146 U.S. 387 (1892)In re Stone Creek Channel Improvements 424 N.W. 2d 894 (N.D. 1988)Just v. Marinette County 56 Wis. 2d 7, 201 N.W. 2d 761 (1972)Kellinger v. Forty-Second Street Railway Co. 50 N.Y. 206 (1872)Kerr v. Brookline 208 Mass. 190, 94 N.E. 257Knight v. United Land Association 142 U.S. 161, 35 L. Ed. 974 (1891)Kootenai Environmental Alliance v. Panhandle Yacht Club 105 Idaho 622, 671 P. 2d1085 (1983)LaCoste v. Dept Of Conservation 263 U.S. 545 (1949)Lahr v. Metropolitan Elevated Railway Co. 104 N.Y. 268 (1887)McLennan v. Prentice 55 N.W. 764 (1893)Maine v. M/V Tamano 357 F. Supp. 1097 (D.C. Me 1973)Marks. v. Whitney 491 P. 2d 374 (1971)Martin v. Waddell 41 U.S. (16 Pet.) 367 (1842)Milhau v. Sharp 27 N.Y. 611 15 Barb. 193 (N.Y. App. Div. 1853)Morse v. Oregon Div. of State Lands 34 Or. App. 853, 581 P. 2d 520 (1978), aff'd 285Or. 197, 590 P. 2d 709 (1979)National Audubon Soc. v. Superior Court 658 P. 2d 709 (Cal. 1983)New Jersey v. New York 283 U.S. 336 (1931)Orion Corp. v. State of Washington 747 P. 2d 1062 (Wash. 1987)169Owsichek v. State Guide Licensing 763 P. 2d 488 (Alaska 1988)Paepcke v. Public Building Commission of Chicago 46 Ill. 2d 230, 263 N.E. 2d 11 (197)People v. California Fish Co. 166 Cal. 576, 138 P. 79 (1913)People v. Kerr 27 N.Y. 188 (N.Y. App. Div. 1862)Phillips Petroleum Co. v. Mississippi 108 S.Ct. 791 (1988)Pollards Lessee v. Hogan 44 U.S. (3 How) 212 (1845)Priewe v. Wisconsin State Land & Improvement Co. 93 Wis. 534, 67 N.W. 918 (1896)aff'd 79 N.W. 780 (1899)Re Steuart Transportation Company 495 F. Supp. 38 (1980)Robbins v. Dept. of Public Works 355 Mass. 328, 244 N.E. 2d (1969)Save Ourselves, Inc. v. Louisana Environmental Control Commission 452 So. 2d 1152(La 1984)Shively v. Bowlby 152 U.S. 1, 38 L. Ed 331 (1894)Shokal v. Dunn 109 Idaho 330, 707 P. 2d 441 (1985)Sierra Club v. Andrus 487 F. Supp. 443 (D.D.C. 1980)Sierra Club v. Department of the Interior 376 F. Supp. 90 (1974)Sierra Club v. Department of the Interior 398 F. Supp. 284 (1975)Sierra Club v. Department of the Interior 424 F.Supp. 172 (1976)State v. Superior Court (Lyon) 29 Cal. 3d 210, 625 P. 2d 239 (1981)State v. Superior Court (Fogarty) 29 Cal. 3d 240, 625 P. 2d 256 (1981)State v. Superior Court of Placer County 29 Cal. 3d 240, 625 P. 2d 256 (1981)State Department of Environment Protection v. Jersey Central Power & Light Co. 125N.J. Super. 97, 308 A. 2d 671 (1973)State of Nevada v. U.S. 512 F. Supp. 166 (1981)170Steele v. Boston 148 Mass. 578State v. Public Service Commission 81 N.W. 2d 71 (1957)Story v. N. Y. Elevated Railway Co. 90 N.Y. 122 (1882)U.S. v. Burlington Nthn Railroad Co. 710 F. Supp. 1286 (D. Neb. 1989)Wade v. Kramer 459 N.E. 2d 1052 (Ill. App. 4 Dist. 1984)Canadian Cases Baldwin v. Chaplin (1915) 21 D.L.R. 846Big Point Club v. Lozon [1943] O.R. 491Brown v. Reed (1874) 15 N.B.R. 206Calgary (City of) v. Cominco Ltd [1983] 2 W.W.R. 320Capital City Canning Co. v. Anglo British Columbia Packaging Co. (1905) 11 B.C.R.333Champion & White v. Vancouver [1918] 1 W.W.R. 216Chavigny de la Chevrotiere v. Montreal (City of) (1886) 12 App. Cas. 149Clarke v. Edmonton (City) [1930] S.C.R. 137, [1929] 4 D.L.R. 1010Code v. Jones & Town of Perth (1923) 54 O.L.R. 425Dawes v. Hawkins 8 C.B.N.S. 878Dixon v. Snetsinger (1873) 23 U.C.C.P. 235Donnelly v. Vroom (1907) 40 N.S.R. 585Dunstan v. Hells Gate Enterprises Ltd (1987) 20 B.C.L.R. (2d) 29 (CA)Electrical Development Co. v. Ontario (Attorney General) (1917) 38 O.L.R. 383Energy Probe v. Canada (A.G.) (1989) 3 C.E.L.R. (N.S.) 262 (Ont. C.A.)171Fares v. R. [1929] Ex C.R. 144Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607, 33 D.L.R. (4th) 321Fort George Lumber Co. v. Grand Trunk Railway (1915) 9 W.W.R. 17Friends of the Oldman River v. Canada (Minister of Transport and Minister of Fisheriesand Oceans) [1992] 1 S.C.R. 3, 2 W.W.R. 193Gage v. Bates (1858) 7 U.C.C.P. 116Goldex Mines Ltd v. Revill (1974) 54 D.L.R. (3d) 672Green v. Ontario (1973) 2 O.R. 396 (Ont. H.C.)Guerin v. The Queen (1984) 13 D.L.R. (4th) 321Hydro Electric Power Commission of Ontario v. Grey (County of) (1924) 55 O.L.R. 339Isherwood v. Ontario & Minnesota Power Co. (1911) 2 O.W.N. 651Keewatin Power Co. v. Keewatin (Town of) (1906) 13 O.L.R. 237Keewatin Power Co. v. Keewatin (Town of) (1908) 16 O.L.R. 184 (C.A.)Laskin v. Bache & Co. Inc. (1971) 23 D.L.R. (3d) 385McFeeley v. B.C. Electric Railway Co. [1918] 1 W.W.R. 339Mclnsley v. Gilley (1907) 7 W.L.R. 22McNeill v. Jones (1894) 26 N.S.R. 299Mann v. The Queen (1 June 1990), Vancouver A 881092 (B.C.S.C.)Meisner v. Fanning (1842) 3 N.S.R. 97 (T.D.)Minister of Justice of Canada v. Borowski (1981) 130 D.L.R. (3d) 588, [1981] 2 S.C.R.575Nash v. Glover (1876) 24 Gr. 219Niagara Navigation Co. v. Niagara (Town of) (1914) 31 D.L.R. 17172Nicholson v. Moran (1949) 4 D.L.R. 571North Saanich (District) v. Murray [1974] 1 W.W.R. 179Nova Scotia Board of Censors v. McNeill (1975) 55 D.L.R. (3d) 632, [1976] 2 S.C.R.265Parker v. Elliott (1852) 1 U.C.C.P. 470Re Collins & Ontario Pension Commission; Re Batchelor & Ontario Pension Commission(1986) 56 O.R. (2d) 274 Div. Ct.Re J.F. Brown Co. Ltd and City of Toronto (1916) 36 O.L.R. 189Re Heyl & Lac Minerals Ltd (1985) 50 O.R. (2d) 535Re McKillop and City of Vancouver (1954) 11 W.W.R. (N.S.) 593 (B.C.)Re Olgivie Flour Mills Co. Ltd and Winnipeg [1927] 1 W.W.R. 833Re Ottawa & Nepean (1910) 2 O.W.N. 480R. v. Hunt (1865) 16 U.C.C.P. 145R. v. Lord (1864) 1 P.E.I. 245R. v. Meyers (1853) 3 U.C.C.P. 305R. v. Roberston (1882) 6 S.C.R. 52R. v. The Woldingham [1925] Ex. C.R. 85Reese v. Alberta (Minister of Forestry, Lands & Wildlife) (1992) 123 AC 241 (Alta.Q.B.)Rice Lake Fur Co. Ltd v. McAllister (1925) 56 O.L.R. 440Rose v. Belyea (1867) 12 N.B.R. 109 (C.A.)Saint John Harbour Commissioners & A.G. of Canada v. Eastern Coal Docks, Ltd(1935) 8 M.P.R. 499Sarnia (Town of) v. Great Western Railway Company (1861) 21 U.C.Q.B. 59173Stephens v. MacMillan (1954) O.R. 133Summer Village of Sundance Beach v. W.A.W. Holdings Ltd [1981] 1 W.W.R. 581Thorson v. A.G. for Canada (No.2) (1974) 43 D.L.R. (3d) 1, [1975] 1 S.C.R. 138Tweedie v. R. (1915) 52 S.C.R. 197Vancouver (City of) v. Burchill [1932] S.C.R. 620W.A.W. Holdings Ltd v. Summer Village of Sundance Beach [1980] 1 W.W.R. 97Western Canada Wilderness Committee v. Minister of Environment and Parks (RC.)(1988) 25 B.C.L.R. (2d) 93 (B.C.S.C.)Wood v. Esson (1886) 9 S.C.R. 239Australian and New Zealand Cases Hospital Products v. U.S. Surgical Corporation (1984) 156 CLR 41, 55 ALR 417Mabo v. Queensland (1992) 66 ALR 408Murphyores Incorporated Pty Ltd v. Commonwealth of Australia (1976) 136 C.L.R. 1(H.C.)R. v. Mayor of Blenheim (1907) 28 N.Z.L.R. 249Williams v. A.G. (1913) 16 C.L.R. 404.

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