The public trust doctrine: The key to protect natural resources
This principle has been used to support numerous environmental conservation initiatives
The Public trust doctrine is one of the oldest common law doctrines which is receiving more attention in recent years. According to this doctrine, the government must hold some natural resources – including water, air and wildlife – in trust for the general welfare. This means that these resources need to be safeguarded and maintained in a way that is advantageous to both current and future generations.
This principle is founded on the notion that some resources are so essential to the public interest that they must be conserved for public use and shielded from private ownership. The origin of this doctrine can be traced in the legal concept of Roman res communis, to which Justinian stated, "By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea."
The public trust doctrine has become more important and popular in recent years as awareness about environmental damage and climate change has grown. The idea has been used to support numerous environmental conservation initiatives, including the protection of endangered species, the regulation of water use, and the preservation of wetlands.
The doctrine is essential in guaranteeing that the public has access to natural resources. The doctrine ensures that all members of the public, regardless of socio-economic level, have equal access to these resources and can benefit from them. This is done by keeping these resources in trust for the benefit of the public. Under the public trust doctrine, the government has a duty to protect these resources and ensure that they are accessible to the public for recreation, fishing, and other activities.
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In the US, for example, both state and federal courts have acknowledged numerous times that it is the government's fiduciary duty to safeguard natural resources for the general welfare. In the landmark case of "Illinois Central Railroad v. Illinois" (1892), the US Supreme Court held that the state of Illinois held the bed of Lake Michigan in trust for the benefit of the public and could not grant exclusive rights to a private party to use it for commercial purposes.
In recent years, the Bangladesh judiciary has played an increasingly important role in upholding this doctrine and protecting the environment. In 2011, the Supreme Court of Bangladesh issued a landmark decision in the case of "Shah Abdul Hannan v Bangladesh" where it explained the applicability of the doctrine in Bangladesh as it is a part of English Common Law.
Thus, the court generated a duty towards the government to protect all types of natural resources in Bangladesh. This case transplanted the Indian idea of public trust established in "MC Mehta v. Kamal Nath & Ors" (1997).
Another remarkable case on the doctrine is "Human Rights and Peace for Bangladesh v. the Government of Bangladesh," which was filed to depict the horrible status of the Turag river and to take immediate action to preserve this river and its surrounding environment.
In this case, it was clarified that the State is not the owner of rivers but rather a trustee whose duty is to protect the river for the public and future generations. It was decided that the public trust doctrine required the government to safeguard the river, but it was also decided that the river, along with all other rivers in the nation, are living entities with legal rights.
The doctrine has also been adopted by various international legal instruments. Under Article 192 of the United Nations Convention on the Law of the Sea, 168 state parties committed to safeguarding the maritime environment where an implicit global public trust regime is established.
The Indigenous and Tribal Peoples Convention (1989) mandates that the 23 state parties act in concert with indigenous peoples to safeguard and conserve the ecology of the regions they call home.
Furthermore, 187 nations signed the Convention for the Protection of the World Cultural and Natural Heritage (1975), pledging to safeguard and preserve natural regions with exceptional significance to humanity from the perspectives of science, conservation, and aesthetics.
As we face increasing environmental challenges and the need for sustainable development, the public trust doctrine remains an important legal principle for protecting our natural resources for future generations. It reminds us that we have a duty to manage our natural resources in a way that benefits everyone, not just a select few. For building a sustainable society and to achieve SDG goals, Bangladesh must implement this doctrine in domestic legislation which may affect environmental conservation and usage.
The author is a lecturer at the Department of Law at the Bangladesh Army International University of Science and Technology (BAIUST).
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.
