Last updated as of: August 1, 2021

What is the Public Trust Doctrine?

The public trust doctrine is a common law legal principle declaring that there are certain public rights that are so important that the government holds them in trust for the public at large.

It is, in essence, a legal mechanism that members of the public can use to require governments to hold and protect vital natural resources (such as navigable waters, drinking water, and fisheries) for the benefit of present and future generations.

The rationale behind the principle stems from the idea that within the public lies the true power and future of society.

The Public Trust Doctrine in the USA

The public trust doctrine originated in Roman law in the 6th century and was later incorporated into English law in the 13th century as part of the Magna Carta. Originally, it was understood that certain common properties, such as the seashore, highways, and running water, were dedicated to the public because the interests and activities that these properties facilitated, such as the right to navigable waters and fishing, should be protected for all to enjoy. These resources were owned by no one and the public had undefined rights of use and enjoyment.

This doctrine was adopted by US law and continued the notion that certain public uses of natural resources ought to be specially protected. The US Supreme Court decision in Illinois Central Railroad Co. v. Illinois is the foundational case for the public trust doctrine in the USA and lays out a “traditional scope” for the doctrine, which has been built upon by various jurisdictions in the United States. The Court held in a 4:3 decision that the State of Illinois did not have the authority to grant fee title to submerged lands because it was held in the public trust as navigable waters. This case sets out the traditional scope of the public trust doctrine, which has been subsequently modified by different states throughout the decades.

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The Public Trust Doctrine in Canada

In the United States, each state’s Supreme Court is the final interpreter of its state law; the United States Supreme Court is limited to deciding matters of federal law. It just so happens that the public trust doctrine is widely, though not uniformly, understood to be a matter of state law.

In the Canadian legal system, the Supreme Court of Canada is the “court of last resort” for appeals from any appellate court in Canada. In other words, the nature of the public trust doctrine in Canada is not as varied as the United States and is thus easier to pinpoint.

There are three key differences between the US and Canadian Public Trust Doctrine:

1.   The public trust doctrine in Canada focuses more on incorporating classical trust law concepts

2.   The Canadian public trust law is based heavily and drawn from fiduciary obligations

3.   Canadian litigants tend to use the public trust doctrine to challenge substantive merits rather than procedure of governmental actions

For more information: Anna Lund, “Canadian Approaches to America’s Public Trust Doctrine: Classic Trusts, Fiduciary duties & Substantive Review” (2012) 23:2 J. Env. L. & Prac. 105 (WL Can)

The public trust doctrine in Canada is still in early stages of development; there have only been a handful of cases over the past decades where it has been argued and even fewer where it has been considered.

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