The idea that we hold the atmosphere around us in trust, with a duty to protect it for future generations, is taking hold. And the debate is drawing on everything from an 18th century English jurist to contemporary activism by US peoples of colour, writes Claire Browning.

Nobody owns the sky, but all of our lives depend on it. A series of court challenges by youth to their governments have brought ideas of the “public trust” to the fore, claiming that we hold the atmosphere in trust, have a duty to protect and pass it on to coming generations, and therefore governments must act on climate change.

Independently, Auckland professors Dame Anne Salmond and Klaus Bosselmann are also working on the “public trust”. Bosselmann suggests a framework for global environmental stewardship, which he has taken to the United Nations. UN member states, he argues, are trustees for the Earth. Salmond sees a case for a public trust in rivers and their water in NZ, joining Sir Eddie Durie and the NZ Māori Council in calling for an independent Waterways Commission to take over water matters from the government.

This kind of idea about the public trust goes back at least to 1970, and maybe a long way before that. It’s been called a “drumbeat” of academics and environmental groups. The gist is to extend, to the environment, and to governments and decision-makers, the kinds of duties over the environmental common that we would apply to administering property in a trust: not to damage it, to manage it in perpetuity, for its beneficiaries. The policy case for the public trust is the need for a reality check: the need for a balance on power, against the “self-interested and powerful minorities [which] often have an undue influence on the public resource decisions of legislative and administrative bodies and cause those bodies to ignore broadly based public interests”.

I agree with Anne Salmond about taking public trust ideas, the wisdom of kaitiakitanga, and a bit of good Kiwi no 8 wire, and doing something ingenious. As I’ll explain, though, I disagree with her on a couple of things as well. As part of a wider ecological idea of justice, supported by a grant from the New Zealand Law Foundation, I’ve been looking at the public trust, too.

That work takes as its starting point environmental justice in the United States. Peoples of colour joined in demanding recognition and reclaiming influence and control, from centuries of oppression, cultural dislocation, and discrimination against them in environmental decision-making. Within a decade their demands reached from grass roots activism to Bill Clinton in the Oval Office. They addressed both government and, significantly, the popular environmental groups. “Most of the whites are concerned about the surface waters because it is recreation for them,” one of the organisers said. “It is life for us.”

For “recreation” in the quote above, we might say “profit for them”, as well. Environmental justice claims in the US are echoed here, and lived here, by Māori — and others, but at the heart of environmental justice are colonisation stories, about white people’s ideas. Through Waitangi Tribunal findings, Treaty settlements, and challenges put to the Crown and Pākehā by Māori, we are somewhere along a path that has us rethinking some of the environmental ideas in particular — most recently with Te Awa Tupua, the Whanganui River; and most memorably with the foreshore and seabed, now dealt with in NZ in the Marine and Coastal Area (Takutai Moana) Act. The original common law public trust evolved in disputes about the ownership of these lands under tidal waters, and access onto and over them.

Māori, through mātauranga Māori and their tireless, thankless work in calling out injustice, are leading us to an ecological idea of justice in New Zealand. We’re a long way from arriving there yet. There’s a famous photo of Dame Whina Cooper, slowly walking hand in hand with a little child on a winding, gravelled country road. In this story, I’m seeing Pākehā NZ as the child. Dame Whina led the land march or hikoi to parliament, that saw the Waitangi Tribunal established and started the Treaty settlement process on its aching slow steps towards justice.

In both her RNZ interview with Kathryn Ryan and recent opinion in the New Zealand Herald, Professor Salmond comments on what seems selective attention by our government to English common law jurist Sir William Blackstone. She argues that we need to give a new life, through the public trust, to duties “somehow forgotten” which Blackstone described, not to interfere with others’ enjoyment and use of water.

In his Commentaries on the Laws of England Blackstone called water “a moveable, wandering thing”, a “vague and fugitive” thing, that allowed use, but not an ownership right. To interfere with another’s use — for example, “to stop or divert water that uses to run to another’s meadow or mill; to corrupt or poison a water course”—was an actionable nuisance. His language does suggest actions, rather than, for example, downstream consequences of (criminally ignorant or wilfully blind) omissions by regional councils, and he goes on literally to say: “do any act”.

In the collective writings of Blackstone and others — Bracton, Justinian, who rewrote the Roman law Corpus Juris Civilis, another Roman emperor Marcian — there emerges a short list of other “moveable wandering things” that “by the law of nature … are common to mankind”: sunlight, the air, flowing water, the sea (and, therefore, the seashore), wild creatures.

We should pay careful, not selective, attention to Blackstone, and what we can learn about the public trust. Ironically, however, it points to the opposite conclusion from the one that is sought.

What is wanted, by public trust advocates, is a binding duty on those taking care of our place, that is, the government and regional councils, who are failing to act. But Blackstone describes a civil nuisance matter, between individuals — not a restraint on the government, let alone a positive, publicly enforceable duty on the government to act in a certain way. Some US cases do seem to show that a public trust-type interest, as in public parklands for example, might prompt heightened judicial scrutiny of a process or decision. And secondly: at common law, “in common” mostly meant “free to go and take” — just as users are used to expect with unpriced water and greenhouse gas emissions.

It might be subject to some regulation. But the common law authority for a positive obligation on government to defend any particular interest, or step in on behalf of people and place, is thin. The public trust in access to tidal waters and the shore — specifically for navigation, commerce, and fishing — conceived of a public good served through a very specific bundle of interests, that likely were not a million miles away from the interests of the sovereign at the time, although they incidentally served the public good as well. And so, in some ways, New Zealand governments have grasped all this quite well.

Only in the US has the public trust advanced to broader ideas. But in the US, federal government has had “continuing responsibility” and a fiduciary duty since 1970 to “use all practicable means” to “fulfil the responsibilities of each generation as trustee of the environment for succeeding generations”. Similar laws have trickled down to the laws and constitutions of some state governments. In Hawaii, based on the public trust, the Supreme Court has restored minimum river flows, upholding cultural and ecological purposes among others as true bottom lines. The court put commercial interests in second place to the environmental common good as a priority. But in Hawaii, as well as being supported by a constitutional amendment in 1978, water had been named as a common good in the specific terms of all land grants made.

All of this aside, I agree with Anne Salmond. The NZ parliament can do what it wants, just as the US Congress has done. In the end it therefore doesn’t matter much, if all that Blackstone carries with him down the centuries is the germ of an important idea about duties to others. We aren’t bound in what have been called the “historical shackles” of the common law. Recent Treaty settlements in NZ have seemed to show a new momentum and aptitude for really skilful balance and compromise around these kinds of questions, of ownership in particular, and kaitiakitanga.

I think there is a critical mass and momentum building around our environmental laws that, along with new constitution proposals, could see another overhaul of environmental management in this country to rival the 1980s. It might be the Key-led government’s crowning environmental legacy: the clean-up after the storm.

Because rethinking the public trust links with ideas about property rights and — depending on how it was framed — there is the potential that “any such notion strikes at the very essence of governmental power”, rethinking the public trust also relates to constitutional law reform. Philip Joseph recently said that it is the first task of a constitution to decide what values we want our government and our law to serve. That is the question at the heart of reclaiming or establishing an idea of the “public trust”: it is a check, and a shift in the balance of power.

For the role of the public trust in this, I would also look at the Department of Conservation. Effectively, DOC is trustee of NZ taonga. Under section 5 of the Conservation Act it is also “under the control of the minister”. In a series of public trust cases relating to the management of parklands in the US, courts have taken a dim view of subordinating public parklands to promoting private profits and commercial interests. In what are just some recent examples, Forest & Bird recently exposed open cast coal mining plans for high value conservation land being done in secret by the government; proposals to take water for bottling from the Aspiring national park would see 3km of pipeline laid, by digger, through tokoeka / Haast kiwi “sanctuary”, including access road up to 8 metres wide.

There must come a point where the politicisation, underfunding and undermining of DOC’s role that has been ongoing demands change. DOC holds enormous reserves of public goodwill, in a trust which Māori and Pākehā have not necessarily shared. For tangata whenua, DOC is usurping the role of kaitiaki. Right now, it is tempting to contemplate removing or amending the minister’s statutory function. Instead, we might rethink the configuration and role of the New Zealand Conservation Authority, putting a differently constituted NZCA at the helm as trustee and kaitiaki. Less radical would be making express and binding in the Conservation Act what already ought to be implicit: the duty of the public trust.

Claire Browning is a policy analyst, former lawyer, and environmental advocate, who has worked for the Law Commission. Her work referred to above, due later in 2017, is supported by a grant from the New Zealand Law Foundation.

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