The Public Trust Doctrine in Canada

Court:

• Ontario Superior Court of Justice

Plaintiff:

• Larry Green, environmental researcher

Defendants:

• Province of Ontario, Lake Ontario Cement Ltd.

Facts:

• In 1968, the Province of Ontario leased 16 acres of land , bordering on and submerged under West Lake in Prince Edward County, to Lake Ontario Cement Ltd. (LOCL) for 75 years.

• Under the terms of lease, LOCL was entitled to excavate sand down to a set depth for commercial purposes.

• In 1970, the Province established Sandbanks Provincial Park pursuant to the Provincial Parks Act. The Park is adjacent to the 16 acres leased to LOCL.

• Green, a resident of Toronto, alleged that LOCL’s operations had impaired the “healthful enjoyment and natural environment” of the Park. Further, that the Province had committed a breach of trust by granting public lands to a private company for their personal gain and not in the public interest.

• Green asked the Court for an injunction prohibiting any further excavation of sand and requiring LOCL to restore the leased land to its pre-excavation state.

Judgement and Reasons:

• The Court dismissed the case.

• The Court held that the Plaintiff did not use or have a special interest in the leased lands and had not been personally affected by LOCL’s use of the lands. As a result, the Court found that the Plaintiff’s cause of action was “frivolous and vexatious”.
  • • The Court also held that the Plaintiff did not have a reasonable cause of action based on a breach of trust because the language of the Provincial Parks Act did not clearly establish a trust had been established. The Court did not comment on the existence of a common law public trust law.

Court:

• Federal Court, Trial Division

Plaintiff:

• Canadian Parks and Wilderness Society (CPAWS), an environmental NGO

Defendants:

• Superintendent of Wood Buffalo National Park, Director of Parks Canada (Prairie and Northern Region), and the federal Minister of the Environment

Facts:

• The Canadian Parks and Wilderness Society challenged the validity of a 21-year logging permit issued by the federal government in 1983 that authorized Canadian Forest Products Ltd to harvest timber in Wood Buffalo National Park, the largest national park in Canada and a UNESCO world heritage site.

• The Plaintiff employed the public trust doctrine to protect trees for the purposes of environmental conservation. Trees as a resource and conservation as a use are not traditionally protected by the public trust doctrine

• The Plaintiff sought a declaration that the park is held in trust for the people of Canada and claimed that the Defendants, by granting the logging permit, breached their trust obligations. The Plaintiff also claimed that the Defendants had  acted outside the authority granted by the National Parks Act (which established the Park).

Judgement and Reasons:

• The case was resolved without a trial on the issues because the parties applied to the Court for a judgement on mutually agreed terms. This was, in part,  because the Defendants conceded that it did not have the statutory authority to grant the logging permit. As a result, the Court did not have to rule on whether the public trust doctrine applied to trees for the purposes of conservation.

• Nevertheless, this case is significant because it shows that the public trust doctrine has been used in case-law to protect non-tradition resources and uses.

Court:

• Superior Court of Ontario

Plaintiff:

• Walpole Island First Nation, Chippewas of Nawash Unceded First Nation, and Saugeen First Nation

Defendants:

• Attorney General of Canada; the Province of Ontario

Facts:

• The Plaintiffs argued that they held Aboriginal title to land submerged under Lake Erie and Georgian Bay in Lake Huron. Obtaining a declaration of “Aboriginal title” would mean that the First Nations would have the right to exclusive use and occupation of the land subject to that title.

• The governments of Canada and Ontario attempted to use the public trust doctrine to strike down the claims, arguing that Aboriginal title to the lakebed was incompatible with the common law public right of navigation over the lake.

• Ontario argued that: “title to the Great Lakes and navigable rivers is vested in the sovereign for the benefit of the public and the public is recognized to enjoy rights of navigation. The Crown holds title in trust for the public.”

Judgement and Reasons:

• The Court denied Canada and Ontario’s motion to strike down the claim

• The Court found both Canada and Ontario’s arguments were persuasive, but was not persuaded that it was “plain and obvious that the Plaintiffs will fail” and was not “satisfied beyond a reasonable doubt that the Plaintiffs will fail”.
  • Again, the Court did not delve into discussion about the public trust doctrine.

• Nevertheless, this case shows the potential flexibility of the public trust doctrine in Canada. It can expand to cover new resources and new uses (like in Canadian Parks and Wilderness Society v. Wood Buffalo National Park) but can also be employed for traditional uses of fishing and navigation and lakebeds.

• This case also highlights the important need to reconcile the public trust doctrine and Aboriginal title and rights, two legal principles that arise from two different sources – and sometimes conflicting – sources of law.

Court:

• Supreme Court of Canada

Plaintiff:

• Province of British Columbia

Defendants:

• Canadian Forests Products Ltd. (“Canfor”)

Facts:

• In 1992, a forest fire burned 1,491 hectares of forest in the interior of British Columbia.
  • • The fire started because Canfor had carried out a controlled burn of its logging waste the previous year and had failed to extinguish the fire.

• The government of BC sued Canfor for:

1.  Expenditures for suppression of the fire and restoration of the burned-over areas;

2.   Loss of stumpage revenue from trees that would have been harvested in the ordinary course (harvestable trees); and

3.   Loss of trees set aside for environmental reasons (non-harvestable or protected trees)

• At trial, the Plaintiff’s claim took a narrow commercial focus, similar to that of a landowner of a tract of forest. The trial judge awarded the Plaintiff $3.5 million for fire suppression and restoration and dismissed the other claims.

• The decision was appealed all the way to the Supreme Court of Canada, where the Plaintiff broadened its claim for damages, including those based on its role as “parens patriae”, as a representative of the collective interests of the public, and under the public trust doctrine.

Judgement and Reasons:

With respect to parens patriae and the public trust doctrine, the Court noted that there is no legal barrier for the Crown to sue on behalf of the public for environmental damages on the basis of torts such as public nuisance or negligence.

• However, the Court decided that since the Plaintiff did not introduce this argument at trial with the necessary supporting evidence, it would not fair to the Defendant for the Court to consider it on this appeal.

• The Court also noted that such arguments would raise important policy questions such as:
  • • the Crown’s potential liability for inactivity in cases of environmental threats;
    • the existence or non-existence of enforceable fiduciary duties owed to the public by the Crown;
    • the limits to the role and function and remedies available to governments taking action towards harmful activity to public enjoyment of public resources; and
    • imposing on private interests an indeterminate liability for an indeterminate amount of money for ecological or environmental damages.

Court:

• Prince Edward Island Supreme Court – Appeal Division

Plaintiff:

• Province of Prince Edward Island, Attorney General of Prince Edward Island, and four fishermen from P.E.I.

Defendant:

• Attorney General of Canada

Facts:

• The Plaintiffs brought an action against Canada claiming that the section of the federal Fisheries Act dealing with the allocation of fishing licenses was unconstitutional and that, in making licensing decisions, the federal Minister of Fisheries and Oceans failed to protect PEI’s fisheries for all Canadians.

• In a preliminary hearing, the Defendant had asked a motions judge to dismiss the Plaintiff’s Statement of Claim.  The judge refused to do so and found that the PEI Supreme Court had jurisdiction to hear the Plaintiff’s arguments at trial.  The Defendant appealed that decision.

• In the Statement of Claim, the Plaintiffs claimed  that Canada’s policy and decisions over a number of years led to a cumulative effect of denying PEI and its fishers their fair share of the fishery resources, which is a breach of government public trust obligations

• The Plaintiffs argued that the fishery in Canada was a common property resource that is managed by Canada or the Minister as a trustee (or fiduciary) and for the benefit of all Canadians, as beneficiaries.

• The Plaintiff described Canada’s the common law public trust obligations as including:
  • • The duty to act in good faith,
    • to act in the interests of all beneficiaries and to avoid conflicts of interest,
    • to preserve the fishery,
    • to act prudently, to treat all beneficiaries impartially and with an even hand, and
    • to furnish information and reasons to persons affected by his decisions, to Islanders and Canadians generally, about the management of the fishery.

Judgement and Reasons:

• At the preliminary hearing, the motions judge referred to discussion by the Supreme Court of Canada in British Columbia v. Canadian Forest Products Ltd, 2004 SCC 38 about the public trust doctrine and reasoned that if the government can act as a guardian of the public interest and claim damages against another party on behalf of the public, then a beneficiary of the public interest should be able to claim against the government for a failure to properly protect the public interest.

• The motions judge viewed the issue as primarily one of a common law breach of a fiduciary relations, reinforcing the idea of public trust obligations in Canada are drawn from fiduciary law.

• On appeal, the PEI Supreme Court – Appeal Division struck down the Plaintiffs’ Statement of Claim, in part because the claim regarding a breach of public trust was incidental to a discretionary decisions of a federal minister and, therefore, exclusively within the jurisdiction of the Federal Court.

• No finding was made on the matter of public trust in either court, and this case is a good example of public trust duties in Canada being drawn from fiduciary law.

Court:

• Federal Court – Trial Division

Plaintiff:

• City of North Vancouver, British Columbia

Defendants:

• The owners and others interested in a ship called the “Seven Seas S.R.”

Facts:

• The Defendants owned and operated a former ferry as a floating restaurant. The ferry had been purchased from the Plaintiff and was moored to a water lot in a marina owned by the Plaintiff.

• The Defendants leased the water lot from the Plaintiff.

• The Plaintiff terminated the lease after non-payment of rent and unsuccessful attempts to renegotiate a new lease.

• The Defendants asked the Court to determine whether the termination of the lease meant the termination of the Defendants’ right to use and occupy the water lot.

• The Defendants claimed that they had acquired the right to permanently moor the floating restaurant on the water lot because the purchase agreement for the ferry included a permanent right to moorage at the water lot.

• Amongst other arguments to support their claim, the Defendants referred to the public trust doctrine, as articulated in Illinois Central, to argue that the public right of navigation in tidal waters gave them a right to use the water column, a right that cannot be extinguished without clear words. <- link to USA public trust doctrine at subsection Illinois Central)

Judgement and Reasons:

• The Court found the public trust doctrine inapplicable in this case, but held that even if it was applicable, it would not help the Defendant since the doctrine is inconsistent with a permanent private right over public waters.

• The Court elaborated that the government must exercise its control over those waters to promote the interests of the public, implying that a permanent private right over a water lot in tidal waters is not in the interests of the public.

• This case displays a similarity between the American and Canadian public trust doctrines where an absolute termination of public ownership is beyond the authority of the government as a public trustee

Court:

• Ontario Environmental Review Tribunal

Plaintiff:

• Nestlé Canada Inc.

Defendant:

• Ontario Ministry of the Environment

Facts:

• The Ministry of Environment issued a permit under the Ontario Water Resources Act (OWRA) to Nestlé to take groundwater for its bottled water operation in Wellington, Ontario.

• Nestlé appealed certain conditions in the permit to the Tribunal but, prior to the preliminary hearing, reached a settlement agreement with the Ministry that amended the conditions. Nestlé advised that it would withdraw the appeal.

• Two public interest groups, the Wellington Water Watchers (WWW) and the Council of Canadians (COC), obtained party status and opposed the amendments to the conditions and the withdrawal of the appeal.

• The Tribunal had to determine whether Nestlé’s proposed withdrawal was consistent with the purpose and provisions of the OWRA and whether the proposed withdrawal was in the public interest.

• The WWW and COC objected to the proposed settlement and withdrawal on the basis of the public trust doctrine. They argued that the public trust doctrine imposed obligations on the Ministry of the Environment to manage the aquifer in a particular way and that the proposed settlement with Nestlé was inconsistent with the public trust doctrine and a breach of the Ministry’s obligations.

• WWW and COC also submitted that the settlement is inconsistent with the purpose of the OWRA, which must be interpreted in a manner consistent with the public trust doctrine.

Judgement and Reasons:

• The Tribunal found that the proposed amendments to the permit conditions were not consistent with the purpose and provisions of the OWRA or in the public interest.

• The Tribunal discussed the public trust doctrine but decided that it did not need to resolve the question of whether it applied here since the proposed settlement and withdrawal had been found inconsistent with the OWRA for other reasons.

• The Tribunal’s decision illustrates a case where the direct ruling of the common law public trust doctrine was avoided and instead indirectly ruled based on statutory grounds.

Court:

• Federal Court – Trial Division

Plaintiff:

• Burns Bog Conservation Society, a non-profit society dedicated to preserving the Bog

Defendants:

• Attorney General of Canada, the federal Minister of Transportation and Infrastructure, the federal Minister of Environment, the federal Minister of Fisheries, and the Queen in Right of Canada

Facts:

• Burns Bog is one of the largest raised peat bogs in the world and is located near Vancouver, B.C. In 2004, two local municipalities and the Province of BC purchased parts of the Bog for conservation, using money from the federal government.  The owners granted the Federal Crown a covenant preventing the owners from taking any action that could harm the Bog.

• Later, the Province of B.C. decided to build a highway that would run next to the Bog. The highway construction was funded in part by the federal government, though it did not assume any responsibility for the construction or operation of the highway.

• The Plaintiff asked the Court for an injunction to halt construction of a highway

• The Plaintiff claimed that the federal government owed Canadians a public trust, fiduciary, or other legal duty to protect Burns Bog from the ecological damage that the highway would cause.

Judgement and Reasons:

• The Federal Court dismissed the claim.

• With respect to the public trust argument, the Court pointed out that no Canadian courts have recognized a public trust duty requiring the Crown to protect the environment.

• The Court noted that the Supreme Court of Canada in British Columbia v. Canadian Forest Products Ltd, 2004 SCC 38 (“Canfor”) had considered the possibility that public trust doctrine may exist but had not decided on the issue..

• The Federal Court also distinguished Canfor from this case. In Canfor, the Province of B.C. owned the land and sought tort damages for the publicly owned resource.  Here, Burns Bog is not owned by Canada.  Without ownership of the Bog, the Court could not conceive how a public trust duty could be imposed on the federal government, even if a public trust could exist under Canadian law.
  • This reinforces the idea of the public trust doctrine is tied to fiduciary law (as suggested in Prince Edward Island v. Canada), in which persons cannot be trustees of a property unless they own it.
  • This is because a trustee is a legal owner of the property in trust, thus since Burns Bog is not owned by the federal government, the federal government is not a trustee.
  • Since the federal government is not a trustee, they do not owe a fiduciary duty to the public.

Court:

• Federal Court

Plaintiffs:

• Cecilia La Rose and 14 other children from across Canada

Defendants:

• Attorney General of Canada and the Queen in Right of Canada

Facts:

• The Plaintiffs brought a suit against the Defendants claiming that Canada’s contribution to climate change through greenhouse gas (GHG) emissions negatively impacts their physical, mental and social health and well-being.

• More specifically, the Plaintiffs claimed that:

1.   Canada is continuing to cause, contribute to and allow a level of GHG emissions incompatible with a stable climate system;

2.   Adopting GHG emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a stable climate system;

3.   Failing to meet Canada’s own GHG emission targets; and

4.   Actively participating in and supporting the development, expansion and operation of industries and activities involving fossil fuels that emit a level of GHGs incompatible with a stable climate system.

• The Plaintiffs argued that these actions and inactions infringe on their rights under the Canadian Charter of Rights and Freedoms (the “Charter”), namely section 7 (right to life, liberty and security of the person) and section 15 (equality before and under the law and equal protection and benefit from the law)

• The Plaintiffs further alleged that the Defendants have specific and general obligations under the public trust doctrine to preserve and protect the following “Public Trust Resources” for all Canadians:
  • • navigable waters, the foreshores, and territorial seas (including submerged lands and resources)
    • the air (including the atmosphere); and
    • the permafrost.

• The Plaintiffs described the Defendants’ general obligations under the public trust doctrine as:

1.    A duty to exercise continuous supervision and control over the Public Trust Resources;

2.    A duty to protect the right of the public to access, use and enjoy such resources whenever feasible, including those rights that are fundamental to the ability of the public to enjoy the benefit of the resource as one held in common; and

3.    A duty to safeguard the Public Trust Resources in a manner that does not substantially impair the integrity of these resources or substantially impair the right of the public to access, use and enjoy such resources.

• The Plaintiffs argued that the public trust doctrine was either an unrecognized common law legal right or an unwritten constitutional principle.

• In their Statement of Claim, the Plaintiffs sought an order that the Defendants had breached and continue to be in breach their obligation to protect and preserve the integrity of the Public Trust Resources and had violated the right of the Plaintiffs and put at risk the rights of all children and youth now and in the future to access, use and enjoy the Public Trust Resources.

• The Defendants brought a preliminary motion to strike the Plaintiffs’ Statement of Claim because the claims were either not justiciable (i.e. able to be assessed by a court), raised no reasonable cause of action, or had no reasonable prospect of success.

Judgement and Reasons:

• The Federal Court dismissed the Plaintiff’s Charter claims because they were not justiciable.
  • • The Court found it was not its proper role within Canada’s constitutional framework and the separation of powers between the courts and other branches of government to adjudicate on Canada’s overall policy response to climate change, despite its societal importance.

• The Federal Court found that the public trust doctrine was justiciable as its existence at common law or as an unwritten constitutional principle was a legal question that the courts could resolve.

• However, the Court dismissed the public trust claim because the public trust doctrine “is a concept that Canadian Courts have consistently failed to recognize” and does not exist in Canadian law. The Court held that recognizing the principle now would not be consistent with the incremental development of the common law.

• The Court also rejected the Plaintiffs’ arguments that the public trust doctrine was an unwritten constitutional principle, holding that the Plaintiffs had not pleaded any material facts to support this claim.