Rediscovering the origins and inclusion of the public trust doctrine in South African environmental law: A speculative analysis

• Author: Andrew Craig Blackmore
• DOI: http://doi.org/10.1111/reel.12239
• Published date: 01 July 2018
• Date: 01 July 2018

ORIGINAL ARTICLE

Rediscovering the origins and inclusion of the public trust

doctrine in South African environmental law: A speculative

analysis

Andrew Craig Blackmore

Correspondence

Email: Andy.Blackmore@kznwildlife.co.za The public trust doctrine was deliberately included in South African environmental

legislation; in the best interests of citizens and future generations, it empowers citi-

zens to ensure that the government safeguards the country’s natural and cultural

environment. This article examines South Africa’s environmental law in order to

derive an understanding of the origins and potential application of the doctrine.

While the prima facie origin of the doctrine is the Bill of Rights right in South Af-

rica’s 1996 Constitution, multilateral environmental agreements in Africa appear to

have had a significant influence on how the doctrine was conceptualized and

embraced. This observation dispels the notion that the doctrine was a hermetic

import into South Africa’s environmental law from the United States. Furthermore,

the analysis finds that the environmental right in South Africa’s Constitution paral-

lels the health and wellbeing right granted to its citizens.

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INTRODUCTION

South Africa is one of several countries that have incorporated the

public trust doctrine directly into its environmental law –as opposed

to relying solely on the common law principle and the interpretation

thereof in the courts, as is the case, for example, in the United

States (US).

1

The doctrine arose primarily from the Roman common

law notion of res omnium communes and res extra commercium where

an array of natural resources –e.g., air, fisheries and waterways –

were essential for trade and hence common to all, and may not be

alienated into private use and are thus insusceptible to being traded.

This is distinct from res publica which is commonly held property,

but which may be appropriated to become res privatae or res singulo-

rum,orres nullius in which an object belongs to no one, but could be

owned by way of possession.

2

The doctrine has been succinctly

described by Kenyan Justices Nyamu, Ibrahim and Emukule as fol-

lows: the ‘State, as trustee, is under a fiduciary duty to deal with the

trust property, being the common natural resources, in a manner

that is in the interests of the general public’.

3

Sax describes the doc-

trine as the ‘principle purpose of government to promote the inter-

ests of the general public rather than to redistribute public goods

from broad public uses to restricted private benefit’.

4

In essence, the

doctrine seeks to ensure that the natural and cultural environments

are beneficially used in the public interest, and that the integrity of

this trust entity remains secure from one generation to the next.

This doctrine was incorporated into the Magna Carta and English

common law.

5

In so doing, the Crown assumed the responsibility of

holding public property for the benefit of its people.

6

Subsequently,

the public trust doctrine was inherited by countries that adopted an

Anglo-Saxon legal system –as the basis for the protection of the

abovementioned components of the environment. In other countries,

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1

See, e.g., P Redmond, ‘The Public Trust in Wildlife: Two Steps Forward, Two Steps Back’

(2009) 49 Natural Resources Journal 249.

2

L Feris, ‘The Public Trust Doctrine and Liability for Historic Water Pollution in South

Africa’(2012) 8 Law, Environment and Development Journal 3, 5.

3

Waweru v Republic (2007) AHRLR 149 (KeHC 2006) para 40.

4

JL Sax, Defending the Environment: A Strategy for Citizen Action (Knopf 1970) 165, quoted

in Redmond (n 1) 250.

5

TJ Conway, ‘National Audubon Society v. Superior Court: The Expanding Public Trust Doc-

trine’(1984) 14 Environmental Law 617, quoted in HR Bader, ‘Antaeus and the Public Trust

Doctrine: A New Approach to Substantive Environmental Protection in the Common Law’

(1992) 19 Boston College Environmental Affairs Law Review 751.

6

Bader (n 5) 751.

DOI: 10.1111/reel.12239

RECIEL. 2018;27:187–198. wileyonlinelibrary.com/journal/reel

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