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Study Of Public Trust Doctrine: In Accordance With Relevant Case Laws

The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life.

The doctrine enjoins upon the Government to protect the resources as trustees for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Accepting public trust doctrine as a part of common law, the Indian courts have applied this explicitly in three recent cases, the first one in 1997 and two cases in 1999. Articles 48A and 51A of the Constitution of India also furnish the principles of jurisprudence.

Under this doctrine, the state has a duty as a trustee under Article 48A to protect and improve the environment and safeguard the forests and wildlife of the country. This Public trust doctrine has grown from Article 21 of the Constitution. Public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources. It is a common law concept, defined and addressed by academics in the United States and the United Kingdom.

Various common properties; including rivers, the seashore, and the air, are held by the government in trusteeship for the uninterrupted use of the public The doctrine combines the guarantee of public access to public trust resources with a requirement of public accountability in respect of decision-making regarding such resources. Moreover, not only can it be used to protect the public from poor application of planning law or environmental impact assessment, it also has an intergenerational dimension.

The assertion that the public trust doctrine (PTD) applied to South Africa's water law only by dint of the Constitution and to equate it to expropriation strikes me as very odd. PTD, a cornerstone of modern environmental law, relates to the ownership, protection and the use of essential natural and cultural resources. It holds that certain natural resources are held by the sovereign in trust and on behalf of all the citizens because of their unique characteristics and central importance.

This follows the realization that certain assets are inherently public and not subject to ownership by either the state or private actors. It relates to the ownership, protection and use of essential natural and cultural resources, serving as a check against allocation mistakes by the government with regard to public natural resources. It has been used to guarantee access to bodies of water, protect recreational lakes and beaches, wildlife preserves and even the air.

A well structured and implementation framework for the public trust doctrine ensures that governmental action can be checked to ensure that it benefits the citizenry with regard to key environmental resources.

PTD operates as a superior right guaranteeing qualified access to property, whether owned privately, held by the state or unowned. The doctrine is widely accepted but its exact purview remains a matter of interpretation by courts. There is tension between accrued private rights in what is determined to be res communes. Within the South African context, the PTD has to be seen within the context of a regime that negated the rights of the majority of the citizenry (apartheid). The holding of public water and allocation of rights to water by the state favored particular groups.

To argue that rights to water granted by the state in apartheid South Africa are immune from the PTD negates the right to water for the majority of South Africans. Indeed, in South Africa's law on property, the issue of restitution has been canvassed pointing to recognition that the grant of property rights (including water rights that run with the land) was flawed and needs to be corrected.

Origin of the Public Trust Doctrine

Most scholars identify the Justinian code of sixth century Rome as the genesis of the public trust doctrine - the doctrine of res communes which claims that some things are 'common to mankind - the air, running water, the sea, and consequently the shores of the sea [and] the right of fishing in a port, or in rivers, is common to all men'. The title to these essential resources was vested in the state, as the sovereign, in trust for the people. Res communes were excluded from private control and the trustee was charged with the duty of preserving the resources in a manner that made them available for certain public purposes.

These rules appear in the Justinian Institutes which are thought to be legal textbooks. Thus, there is some doubt as to their effect on Roman life, even though the Institutes drew upon formal laws found in the constitutions and writings of Roman jurists compiled respectively in the Justinian Codex and Digests. Whether formal law or moral imperative, the concept that certain resources are common to all is prevalent today in such diverse areas as the open sea, wildlife, parks, historic monuments, and the electromagnetic spectrum.

That legal or moral concept of common ownership later emerged as more of a reservation of 'a series of particular rights to the public' to engage in certain activities, thus limiting 'the prerogatives of private ownership'. There is therefore now a nearly universal notion that resources such as watercourses should be protected from complete private acquisition in order to preserve the lifelines of communal existence. Within this context and based on a philosophy of natural resource preservation, the Romans implemented a concept of 'common property' and extended public protection to the air, rivers, sea, and seashores. They're existed common rights or easements to navigate and fish, and a presumption that the sovereign owned the submerged lands and the shores in trust for the people.

Common property resources are those resources not controlled by a single entity and access to which is limited to an identifiable community of individuals or states. No one user has the right to abuse or dispose of the property. Any dealing with the property has to take into account the entitlements of others. Besides, users of common property share rights to the resource and are subject to rules and restrictions governing the use of those resources.

In England, this concept appears in the common law, particularly through the writings of Bracton and Flecta, England's Magna Carta, and commentary by Blackstone. These sources are cited as precedent for the notions of common rights to navigation and fishing, but again questions arise over whether these statements accurately reflect the practices of the time given the prevalence of private fisheries. Paragraph 5 of the Magna Carta made explicit reference to the guardianship of land extending the guardianship to houses, parks, fish ponds, tanks, mills and other things pertaining to land.

As early as 1865, the English House of Lords defined the concept of public trust in the case of Gann v. Free Fishers of Whitstable holding that the bed of all navigable rivers here the tide flows, and all estuaries or arms of the sea, is by law vested in the crown. But this ownership of the crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from, or interfere with the right of navigation, which belongs by law to the subject of realm.

This imposed a high fiduciary duty of care and responsibility upon the sovereign.9

The hallmarks of a fiduciary relationship are:

  1. The fiduciary has scope for the exercise of discretion
  2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests
  3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

The vulnerability or disadvantage is seen to make the beneficiary place reliance on the other and therefore there are issues of equity. In private and charitable trusts, the trustee as a fiduciary is held to an unusually high standard of ethical or moral conduct.

In further elaborating the concept of public trust, the English Common Law distinguished between property that was transferable to private individuals (jus privatum) and property that was held in trust for the public (jus publicum) � traditionally mainly navigable waterways. Jus publicum is the dominant estate and encapsulates the public's trust rights, ranging from fishing, fowling and navigation to other broader rights like recreation.

The second component, the jus privatum encompasses the proprietary rights for use and possession of property. Naturally the owners of the jus privatum may not use the property of the jus publicum to the exclusion of the public's rights.

Whatever approach is taken, the fundamental emphasis is on communal rather than private rights. In cases where communal rights protector negates the rights of some, it implies a denial of the application of the PTD as argued by Pienaar and van der Schyff in this issue.

Objective of Public Trust Doctrine

Traditionally Public trust doctrine was only limited to protect the rights like the right to fisheries, hunting, boating, navigation for anchoring or standing. But in the present scenario, it checks the state action for management of the resources and it also questions its action. It states the state as a trustee and the state hold all the resources. It is the duty of the state to preserve, prevent and protect the resources for the public use. The state is expected to perform its positive duty.

Scope of Public Trust Doctrine

According to Joseph Sax, Governmental Regulations always create a public trust problem and it occurs in various types of situations. Public trust needs protection against private goals. And thus, he stated that this doctrine which is a delicate mixture of procedural and substantive protection is appropriate for protection from air pollution, willing of wetlands, strip mining, allocation of resources to private use etc.

Restriction on the State

The Public Trust Doctrine Imposes three types of restriction on the government:

  1. There are some resources which may not be used by the public but it should be stored by the government for the public.
  2. These resources are the gift of nature and it cannot be sold by the government.
  3. The property must be maintained and its adaptation should not lead to private use. There are certain limits and No individual should be allowed to cross these limits.

Application of the Public Trust Doctrine over Natural Resources

Natural resources have traditionally been found either under the sovereignty of a particular state or in the so-called global commons. Where the resources are held by a state, the essence of the PTD is that the state or governmental authority, as trustee, has a fiduciary duty of stewardship of the public's 'environmental capital'. These resources must be held in trust by the state for the benefit and use of the general public. This public includes current and future generations. The State must not alienate trust property unless the public benefit that would accrue outweighs the loss of the public use or 'social wealth' derived from it.

So, neither can the King intrude upon the common property, thus understood, and appropriate it to himself or the fiscal purposes of the nation, the enjoyment of it is a natural right which cannot be infringed or taken away, unless by arbitrary power, and that, in theory at least, could not exist in a free government.

The trust imposes three kinds of restrictions on the state:

  1. The property subject to the trust must not only be used for a public purpose, it must be held available for use by the general public.
  2. The property must not be sold, even for fair cash equivalent.
  3. The property must be maintained for particular kind of uses, such as navigation, recreation, or fishery.
The most fundamental duty that a trustee has is the duty of loyalty and an obligation to act solely in the interest of the beneficiaries. The trustee also has a duty to use care and skill to preserve the trust property (including the duty to protect against 'invasion of the trust'). In addition, the trustee has a duty to furnish information to the beneficiaries, a duty to make the trust productive, and a duty to deal impartially with beneficiaries. In meeting its duties, the trustee must act prudently, diligently, and in good faith.

The public trust doctrine has been used to prevent governments from conveying public resources to private enterprises (prohibition on conveyance) as well as to guarantee the public access to natural resources after the resources have been conveyed to private interests for purposes such as fishing and navigation (prohibition with impression). In many African countries, the imperatives of prohibition on conveyance are assured through vesting critical natural resources such as water in the state implying a trust on behalf of the citizenry to ensure sustainable management of the resources. One implication of the trust is securing the right of the citizenry to access these resources.

The PTD's prohibition on conveyance can be used to defeat private ownership of natural resources. In the case of Illinois Central Railroad vs. Illinois, the state legislature had transferred ownership of the nearly the entire waterfront of Chicago (about 1,000 acres) to the railroad. Four years later, a new legislature sought to revoke the transfer but the railroad challenged the revocation. The United States Supreme Court upheld the revocation, returned the land to the state and stated as follows distinguishing this land as different in character from that which the state holds in lands intended for sale:

It is a title held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have the liberty of fishing therein freed from the obstruction or interference of private parties.

This land was therefore different in character from other lands because of the presence of water on it. Any conveyance of that land had to be in furtherance of the public trust and

The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.

The public's interest in the waterfront had to be weighed against the public gain from conveyance of the land to private parties.

PTD's conveyance with impression applies where rights are reserved for the public even after the state has made private conveyances of certain properties. It recognizes the fact that superior public interests can supersede private-property interests. In many African countries, states have two residual powers that facilitate the regulation of property rights namely, police power (development control) and eminent domain (compulsory acquisition).

Police power refers to the power of the state to regulate land use in the public interest. Its earliest manifestations included the right of the state to tax its citizens, 'taking' of property for necessities of war and the regulation of the use of or destruction of land in the event of pestilence, thus interfering with private property. Police power may be invoked to secure proper environmental management.

For the purposes of securing the public trust even after conveyance though, eminent domain seems to be more apt. Also referred to as compulsory acquisition, it derives from the Roman dominium eminent (sovereignty over territory). It entitles the state by dint of sovereignty to take private property for public purposes and flows from the fact that the state has radical title over all land in the territory and can therefore compulsorily acquire any part of it. The uses for which land has been traditionally acquired include defense, highways, hospitals and education.

Resources Protected under Public Trust Doctrine
The Public Trust Doctrine's power comes from the longstanding idea that some parts of the natural world are gifts of nature so essential to human life that private interests cannot and so the sovereign must steward them to prevent such capture The philosophy and obligation are the central elements of the and duties attach immigration of those who would protect both the natural world and the public's right to sustainable use of that world doctrine, not the specific resources to which the ideas and duties attach.

As such, the Public Trust Doctrine's reach seems constrained only by the imagination of those who would protect both the natural world and public's right to the sustainable use of that world. While Sax's notion of the Public Trust Doctrine focused heavily on the public resources and how those interests may be safeguarded, then emphasize expanded resources themselves that the Public Trust Doctrine safeguards.

While Professor William Araiza summarizes criticism of the Public Trust Doctrine as backward-look anti-democratic vestige whose time, if it ever existed, has passed," he also argues that its ENS have energized activists who have used it to shore up resource protection beyond the Doctrine traditional shores. malleable in buttressing fundamental human of Furthermore, as we shall see below, the doctrine has been rights to a range of ecological resources India and elsewhere from Justinian's time until quite recently, the Public Trust Doctrine covered a narrow range of resources.

For the most part, the Public Trust Doctrine has protected that aspect of the public domain below the low-water mark on the margin of the sea and the great lakes, the waters over those lands, and the waters with rivers and streams of any consequence Occasionally U of the Public Trust Doctrine has included parklands donated to the common law explication of public trust doctrine has included parklands donated to the public.

Landmark Judgments / Case Laws
  1. M.C Mehta vs. Kamalnath, (1997) 1 SCC 388
    The public trust doctrine first alluded in India through this landmark case. This case is also known as SPAN Motel case. In this case, a PIL challenged the minister of environment Mr. Kamalnath [respondent] who allowed SPAN Motel company to construct a hotel near the mouth of river Beas in Himachal Pradesh and also allowed the company to change the course of the river for the construction by blasting the river bed. The construction of the hotel was planned on land which was taken on a 99 years lease from the government. It was allowed by the ministry as well as the gram panchayat of that area.

    The supreme court held that "the public trust is more like an order for the state to use the public property for public purposes". It is the duty of the state to protect the environment, lakes and public heritage and it can be only abdicated in a rare case when it is inconsistent with the public trust. The court observed that earth's natural resources are the gift of nature; it should be protected and it also stated that the values and law must adhere to the environment. The court observed that the Public at large is beneficiary of the earth resources like water, air and wetlands and as the state is the trustee it is the obligation of the state to protect these resources and shall not give it to private ownership for the fulfilment of its own goal.

    The court cited United States law review, experts on environmental law to protect the environmental rights. For example, the court cited a lengthy passage from Harvard environmental law review and the court also stated Justinian saying on public trust doctrine and also quoted Joseph sax to justify its notion.

    The court asked the company to pay compensation for the restoration of the environment of that area under the polluter pay principle.
  2. M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu, AIR 1999 SC 2468
    In the case of M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu the court covered public trust doctrine under the right to life and stopped the construction of the shopping complex in the place of a public garden stating the garden as a public resource. The court observed that the park is a public place with historical importance. The court cited public trust doctrine and M.C. Mehta case as a precedent. The court stated that allowing the construction will deprive the public of the quality of life as stated under Article 21 of the constitution. The court put the government under the obligation to maintain the public park for the citizens as the government has obligatory duties under public trust doctrine which is applicable in India.

    The court stated that public trust doctrine is derived and evolved under Article 21 of the Indian constitution and it is evoked in India to protect the fundamental right of the people.
  3. Shailesh R. Shah vs. State of Gujarat, (2002) 43 (3) GLR 2295
    In the earlier judgment, the court portrayed the state in a negative figure. But in Shailesh R. Shah vs. State of Gujarat the Gujarat high court portrayed the obligation of the state in a positive nature. The court stated that the state holds all the resources like the lake, pond, natural gases, wetland and as the state is held as the trustee it is the duty of the state to maintain and protect them for public use. According to the court, this is a positive duty of the state to prevent the resources and the environment from degradation and safeguard them from extinction. It is a positive duty of the state to preserve the resources.


The word 'Environment' has too many meanings and it is a difficult job to define it. Even the environmentalists who work in this direction are not able to define it. For many centuries we have changed the environment according to us and it is proved that it is malleable. But there is a limit and we have seen the changes in environment like pollution, change in vegetation and food chain, climate change, vanishing wetlands. We, humans, have destroyed the environment.

Not surprisingly the Apex Court of India took a dynamic step to invoke the public trust Doctrine. It was a necessary legal approach towards protecting the resources and environment. This doctrine shows consistency with the current environmental problems. Public trust doctrine enforces a legal right for the general public and a positive obligation for the state to perform its duty. Our constitution reflects the concern for the environment and it also guarantees us the right to a clean environment.

The Public trust doctrine is a great way to ensure the protection of the environment as it checks the management of state and ensures good management of natural resources. It is a tool to address the increasing degradation of the environment. Public trust doctrine is an effective legal framework to solve the environmental conflicts for which India does not have proper laws and legislations. By invoking public trust doctrine, we can promote for the protection of earth and its resources.

There is a need to consider ways of ensuring a systematic 'reaching back' of PTD to correct anomalies in governmental decisions of allocating natural resources, made over time and to recover the public estate. This has to be considered in the context where state holding of public resources as a trustee has been without clear definition of the trustee role. Additionally, the emergence of strong patrimonial and sometimes unaccountable states has resulted in wanton and illegal conversion of public land and resources to private ownership allocation in total disregard of the public interest.

There are an increasing number of cases where different communities seek the return of their property that has now become privatized. This calls for pro-active measures on the part of the state to avert possible instability in the institution of property as guaranteed in the Constitution.

With regard to South Africa, the application of the PTD needs to be considered in cases where it is acknowledged that allocation mistakes have been made and need to be corrected. There is recognition of the need for restitution in the realm of land in South Africa. Insulation of water rights from restitution dilutes the quantum of property rights of holders of restituted land. This cannot be the intention of the land reform program architects in South Africa. In my view, restitution of public water rights allocated during apartheid is necessary for the realization of the right to water enshrined in South Africa's Constitution.

Written By: Bhaswat Prakash, Ajeenkya DY Patil University, Pune (B.A.LL.B)

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