Public Trust Doctrine

Abstract

Public trust doctrine has served as an underpinning principle of contemporary environmental and natural resource law to protect the right of indigenous people and the environment; however, there has been little discussion about it. Therefore, the consistency and effectiveness of public trust doctrine is characterise by difficulties and this has created a gap in it application at national court. The deviations experienced by society and environmental degradation over the past decades remain unprecedented. Therefore this article will critically discuss the public trust doctrine with reference to case law to share a highlight on this concept by looking at 1. Development of public trust doctrine 2. Difficulties in the application of public trust doctrine 3. Analysing public trust doctrine. And in the conclusion of the article, the author agree that “the emergence of public trust as a legal tool empowers environmental activists against powerful private and government interests that imperil natural resources” is accurate fact.

Keywords: Natural Resource, Public Trust Doctrine, Environmental Degradation, Indigenous People, Multinational Corporations, Magna Charta, United Nations, United Nations Declarations of Human Rights, United Nations Conventions. United Nations General Assembly.

Table of Content

1. Introduction……………………………………………………………………………3

2. The development of public trust doctrine…………..……….…………………………5

3. Benefits and drawback of the application of public trust doctrine………….…………7

3.1. Analysis of public trust

3.2. Doctrine…………………………………………………….……………………12

4. Conclusion……………………….….……………………………………………..13

References

Books and journal articles…...…………………………………………………………..14

Legislations…………………….……..…………………………………………………15

Cases ……………………………………………………………………………….……16

Website…………….…………………………………………………………………..…18

1. INTRODUCTION

After colonization, the world is witnessing a race for worth and the right to own and exploit natural resource. Therefore, the world is witnessing a rapid expansion of global natural resource exploitation in the last decades, through economic related activities that is said to be subjected to international law and human rights law, which protect the rights of people but as the evidence points the practicality of this notion have failed to accomplish its objectives, as highlighted in Sahu v. Union Carbide,[1] Defending the TIPNIS Indigenous Territory,[2] Kioble v. Shell,[3] Maynas v. Occidental,[4] and Doe I v. Unocal Corp[5] etc.

Due to this, there is a growing body of conventions, treaties and regulation that is said to protect the rights of people and the environment, the UN Universal Declaration of Human Rights 1948[6] but undoubtable it effectiveness is questionable. However ever since the declaration there has been new conventions and regulation to protect the rights of people and environment, the Draft Principles On Human Rights And The Environment,[7]Protocol to the African Charter on Human and Peoples' on the Rights of Women in Africa,[8] Rio declaration on environment and development 1992,[9] United nations general assembly resolution 3281,[10] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the UN GA on 6th of December 1966[11] and the Convention on the Elimination of All Form of Discrimination Against Women[12] that is intended to be ratify by states but not binding.

Central to the entire concept of these conventions, the problematic aspect of the rules is its binding nature and ratification at national level. Thus, the ratification and enforcement of this is challenging to national courts and public interests. Natural resources disappear offshore due to the economic dynamics and lack of transparency of MNCs contract between government, the identification of ownership and who has the right to benefit and enjoy the resource. For instance, Republic of Congo contracted by the state-owned company Gecamines from the period of 2010 to 2012 for mineral exploitation.[13] There was lack of clarity and transparency in the contract, as result the rights of society were violated and environment destroy without a proper protection mechanism. Hence, the difficult aspect of the natural resource is a mechanism to regulate the rapidly exploitation of natural resource and protecting public interests. Natural resource utilization has failed to benefit the people on substantial grounds, perhaps it is because of lack of transparency of corporation contract, rightful ownership, corruption and lack of good governance.

This common disorder characterised by natural resource exploitation, national state legislation ineffective to regulate corporation and provide adequate mechanism to protect public resource and the environment has change the focus to legal principles such as “Public Trust Doctrine”. Legal scholars like Joseph Sax stress on the effective of Public Trust doctrine,[14] which was derive from the navigable water, when the US Supreme Court decided in Illinios Centre Railroad v Illnios.[15] This doctrine has served as an underpinning principle of contemporary environmental and natural resource law to protect the right of indigenous people and the environment; however, there has been little discussion about it. Therefore, the consistency and effectiveness of public trust doctrine is characterise by difficulties and this has created a gap in it application at national court. Thus the deviations experienced by society and environmental degradation over the past decades remain unprecedented. Therefore this article will critically discuss the public trust doctrine with reference to case law to share a highlight on this concept by looking at 1. Development of public trust doctrine 2. Difficulties in the application of public trust doctrine 3. Analysing public trust doctrine, 4. Conclusion.

1. THE DEVELOPMENT OF PUBLIC TRUST DOCTRINE

The public trust doctrine is developed from varieties of public practice, ever since prehistoric times by using the navigable water as public highways for direction and fisheries. However, the original development of the doctrine is connected to the institutions of Justinian of 533 A.D. that created the doctrine which governing air, running water, the sea and the seashore[16]. In England it is developed through the time of Magna Charta,[17] principal English court judgement[18] which acknowledges that the Crown only held the beds of navigable water in trust for the public navigation[19] trade, and fisheries.[20] Furthermore, this principle indicates that the Crown could not terminate this public trust. Also across the Atlantic Ocean in the U.S. the Arnold v. Mundy case [21] that was heard in 1821 also indorsed the public trust doctrine, that under natural law, civil law and common law, navigable river in which the current flows and the beds and waters of the coastline are apprehended by the sovereign in trust for the people.[22]

The court went on to contested state, being sovereign governments, had replace the English trust that was apprehended by the Crown and that gift of contending the right to deprive the citizens of these common rights is negated. The citizen, through their state can control public resource through building ports, basins, docks, and wharves, recovering land, building dams and bridges and developing fishing places but the autonomous power itself” cannot brand a straight and unqualified right of the water of the state nor depriving all the inhabitants of their common rights.[23]

70 years later, Joseph Sax elaborate on the idea of public trust doctrine as a mechanism for creating inclusive legal explanation of natural resource management and an innovative doctrine of the environmental law.[24] Ever since the developing of Public trust doctrine states have practice it in different form to protect the right of people, its practicality can be noted in constitutional clarification. Where this is seen as potential contextual principle of national property law in cases involving takings, and a practical intersection for a governmental decision making process.[25] To understand the public trust doctrine it imperative to understand the fundamental modern constructions as a limitation on state estrangement on public trust lands under the principle of navigable water, which was in the U.S. Surpeme Court decision in Illinos Central Railward v Illinos[26]. The outcome of Illinios established the foundation of modern public trust restraint on state power. This restraint established that state may not relinquish control over public trust lands and the state is only a trustee of public property not the owner.

The doctrine has significant effect on environmental policy makers throughout the world, especially in India and parts of Asia; it has given state judicial system the legal tool to protect the rights of its citizens within their jurisdictions. As was distinguished in California Supreme Court decision in Mark v Whitney.[27] In Mark the court sumptuous a similar property dispute between Tomales Bay neighbours to assert that public trust doctrine can be extended beyond traditionally- stated sequence of trade, navigation and fishing, to incorporate environment values and defence. The following year, a New Jersey Court refer to public trust doctrine to declare that the public trust can be used to protect and substitute recreational use of trust resource such as seaside.[28] However in the latter half of the 20th century, the public trust rights in tidal lands are not restricted to the antique privileges but protracted and recreation frivolous uses, including bathing, swimming and other shore undertakings.[29]

One of the most important events in the last decades is the debateable decision in 1972, where the Wisconsin Supreme Court explicitly depend on public doctrine to maintained that the doctrine bar the satisfying of privately-owned of wetland, in order to protect those wetlands in the natural condition[30]. The relevance of public trust doctrine clearly supported the principle of protecting public rights and the environment, without a doubt its enforcement has benefit the public, society and protected the environment but this is subjected to a substantial debate due to the controversial decision highlight in the recent case in Wisconsin. Therefore to understand the controversy surrounding the doctrine, it is imperative to discuss the doctrine into full details. This chapter of the article has attempted to give a brief description about the development of the doctrine. The next chapter will discuss the benefits and drawback of the doctrine and its application at national court.

1. BENEFITS AND DRAWBACK OF THE APPLICATION OF PUBLIC TRUST DOCTRINE

This section will discuss the benefits and drawback of the application of Public Trust Doctrine and the different views of legal scholars. One of the most significant current discussions in legal and moral philosophy in public trust doctrine is preserving natural resource and the environment in the interest of public, for endlessness public use and enjoyment. Relating this to the doctrine, the state serves as a trustee to preserve the trust and common natural resource for the benefit of current and the future generations who are the recipient. An implication of this is the possibility to check governmental action and ensuring the right of citizens are protect with regard to the environmental resources.

Thus, the long term implications of this will be spotted in Africa countries, where the necessities of exclusion transference are guaranteed through consigning precarious natural resources such as water in the state entailing a trust on behalf of the public to ensure a sustainable preservation of the resources.[31] This is also noted in Kenya case law, Peter Waweru v The Republic[32], where the court held that land resources, forests, wetlands and waterways, the government and it organizations are trustees, they are to manage and preserver it by balancing between economic benefits of development with the need of a clean sustainable environment.[33] This judgement is consistent with findings of past studies by Joseph Sax as suggested in the public trust doctrine that there is a need to develop a way to safeguarding public property to prevent irregularities in government decisions of assigning natural resources for private and economics purpose.[34] Similarly in 1980 the California Supreme Court in Berkeley v. Superior[35] prohibited a private landowner`s right that nineteenth century statutory allow of tideland necessarily quenched the public trust interest in coastline parcels along San Francisco Bay. Following this judgement, the same court gives two vital judgements that compellingly recognized the trust applicability to internal navigable lake and rivers, plus Lake Tohoe and Clear Lake.[36]

The uniqueness of these cases exists in the fact that public trust doctrine have be observed and applied at national court as a very important legal tool to protect the right of the public and the environment. Some of the most obvious decision was in the 1980 where California Supreme Court replied on the doctrine to deliver an important judgement in relations to public trust doctrine, the iconic “Mono Lake” case.[37] In the judgement, the Supreme Court apprehended that the public trust doctrine applicable to flowing water and water rights, in such a manner as to the tide and submerged lands and the beds of domestic navigable water. Thus, other courts from different state have followed the doctrine in sequences of their own corresponding jurisdictions.[38] This evidence is also noted in Lawrence v. Clark County[39] where the Nevada Supreme Court completely officially incorporated the public trust doctrine as wholly appropriate to current and past riverbeds in such jurisdiction. In Lawrence, the court decided that public trust principles controlled the Nevada Government power estranges trust land in such case, the “now-dry bed and banks significant Colorado River channel.

In addition, it is important to note that in one of the landmark case of environment law in Indian M. C. Mehta v. Kamal Nath[40] the Supreme Court of the land observed that public trust doctrine is applied in Indian. Also in Th. Majra Singh v Indian Oil Corporation[41] a requester complained about the location of a plant cylinder filled with liquefied petroleum gas. The case was decided on the foundation of cautionary norm, it was indorse that the public trust doctrine is part of Indian national legal thought process. Therefore, the High Courts concluded that the doctrine is part of Indian legal system and parcel of Article 21 of the Constitution[42] and in a dispute state is under a compulsion to see that forests, lake and wildlife and the environment are protected. In the light of this judgement, the court highlighted that the notion of public has a right to expect appropriate lands and natural area to be preserved and protected in the law of the land.

Furthermore in K. M. Chinnappa v Union of India[43] a request stimulating the renewal of mining lease granted to Kudremukh Iron Ore Company National. The Supreme Court conclude that the primeval glory of the natural resource cannot be permitted to be battered or impinged unless the Court see it as vital in good faith for the goodness of the public. Adding to the strength of the doctrine in Indian, in State of West Bengal v Kesoram Industries Ltd[44] it was held deep underground water is a property of the state in a logic that the doctrine covers heritage worth. It was also confirm in the case that ground water is national worth and it belongs to the wholly community. This principle indicates that water is a liquid that sustain life on the planet and it is the duty of the state to protect it against extreme exploitation. Finally in Fomento Resorts and hotels Ltd. v Minguel Martins[45] the court restated the public trust doctrine and decided that the natural resources comprising forests, water bodies, rivers, are apprehended by the State as a trustee on behalf of public and specifically for the future generations.

Taken together, these cases suggest that applying public trust state is not the owner of natural resource but the guardian who hold fiduciary link with the community. By receiving this duty, the government is under obligation to be honest and loyal to the benefits of its people and to release its obligation with the benefits of the people at heart and encompass them in the decision-making process of the administration of the natural result of the state. The public trust doctrine provide a legal mechanism to raise the usefulness of environmental impact assessment laws since the implementation of UN conventions and regulations at national level has proven to be problematic due to it none binding nature and the right of sovereignty of state. This way under the doctrine the state has obligation to protect the interest of the public.

The above statement could be spotted in Article 48A defend and expand the environment and safeguard the forests and wildlife of the country. While applying Article 21 (right to life) India constitution,[46] the state has a duty to take into consideration of Article 48A, a Directive Principle of State Policy. Based on this analogy the state trusteeship obligation has been expand to include a right to a healthy environment. As the evidence points here, public trust doctrine is becoming a universal doctrine compared to UN conventions `perhaps it should be called the protection of people doctrine`, where the right of people and the environment could be observed and the right of the future generations are protected if national court applied it correctly. However, two major drawbacks of this doctrine is that it’s wide application and it status in a modern legal system, where it could be seen as a tool for government to revoke private rights or refrain from its obligations.

Therefore, difficulties arise, however, when an attempt is made to implement the public trust doctrine in harmonising interests of private parties and revaluating the public interest and economic benefits. The difficult drawback in public trust doctrine could be observed in McQueen v. South Carolina Coastal Council[47] where second appeal for permit to develop a coastline was denial, subject on appeal the Court of Appeal upheld that McQueen was dispossessed of all economically advantageous use of his property but he is not suffered because of a taking. However he had no reasonable back up investment prospects because of the current wetland regulation[48]. On this evidence the Supreme Court granted McQueen petition for a writ of certiorari. A careful consideration is needed here, the outcome of this case noted that the public trust doctrine has potential effect in bridging the private right of land owner and prevent them to utilize their resource for an economic benefit. This defect in the doctrine has created rather uncertainty and contracting view about the application of the doctrine. However the court did went on to argue that an exclusive right should be observing in the interest of the public, which itself indicate a contradictory view of the court regarding the judgement of the case.

Adding to the debate surrounding the doctrine, the right wing vindicators of private property rights, have argue that the doctrine is incompatible with the substantial theories of property that is undergird civil civilization,[49] while the left wing vindicators such as Professor Lazarus, dread that the consecration of the public trust doctrine as the outstanding mechanism for natural resource allocation scrutiny has mugged public community the prospect to cultivate a better framework[50]. Different environmentalist on the left wing has reject the traditional large theory because it uplifts individual autonomy over all other deliberation in explaining the link between human and non-human mechanisms of society and miss the mark to interpret ecological realism of togetherness. “Green Property”[51] thinkers did not reject the importance of individual self-sufficiency but they supporter a concept of property that gives a better balance between deliberations of personal sovereignty and competing public interest in assigning the right and responsibilities that restricts the link and other things that establish property[52]. The above findings contradict the study by Joseph Sax but the flaw lies in the traditional liberal property theory that causes the difficulties in the application of the doctrine.

The refusal of right for private party to enjoy or utilise its natural resource contradict the first law of ecology, which stated that each thing in our environment, including human being is connected to everything on the planet. Profess Lazarus argue that Joseph Sax concept is theoretical inconsistency to the approach of public trust and that the doctrine dependence on ancient legal narratives, which is defenceless and depend on a pro-environment judicial prejudice.[53] Nevertheless it is clear to state that the doctrine has created a well establish judicial precedent where right of people are protect under national law but has also created some confusion in the legal world in regard to it application. This chapter has shared some light on the different ideas in the application of the doctrine. The next chapter will critically analysis the doctrine.

1. ANALYSIS OF PUBLIC TRUST DOCTRINE

In the above chapter, based on the findings of the cases and the authors views, the evidence have proven to be consistent with the view enshrine in the doctrine. The evidence have given a substantial account of the doctrine on a fundamental base, however the reflection of the doctrine and its theoretical question should be based on current environmental protection and the right of people. Even though Professor Lazarus have given a significant account on the position and theoretical concept, it is undoubtable that the view lack a considerable account of modern society view of protection under state and the right of state to protect the environment. This modern view could also be observed in the UN conventions and other related environment treaties as guiding principle. Based on this, one could argue that the question about private right to own land is rather insignificant in the application of the doctrine as natural resource are heritage given by God, also noted in “Mono Lake” case[54]. Therefore Profession Lazarus view about Joseph Sax public trust doctrine lacks a number of convincing arguments in relations to society and protecting the environment.

Adding to the debate, one could ask if the Brazilian judicial system should have applied public trust doctrine correctly, will the construction of the dam at Tapajós River[55] began. This question alone highlights the defect in judicial system and government collaboration with judicial authority to give a verdict about natural resource utilisations. This also indicate a significant flaw in balance between the interest of society and economic benefit which the state deem it fit for the nation but on the broader scale it actually cause masses of destructions to people livelihood and the environment. Therefore one does not need convention wisdom to support Joseph Sax concept of protecting people and the environment. Furthermore the bias indication of Professor Lazarus in the theoretical concept lacks, as the debate about bias rather lie in state, state application of power, private powerful individual and decision-making, irrespective of what the public interest are. This chapter have attempted to adopt analytical view about the doctrine and debate surrounding the public trust doctrine. It safe to argue here that, the effectiveness of the doctrine makes its application and protection of the environment significant to society, since the UN conventions and treaties, Alien Tort Act[56] and Cavallo principle[57] does not offer a significant protection of public interest under national court. The next chapter will conclude by given overview of the doctrine and future recommendation.

1. CONCLUSION

One of the more significant findings to emerge from this study in relation to case law is the debate about private rights of property, state using public trust doctrine as a mechanism to refrain from carrying out its duties, protecting the interest of public and the environment, the doctrine as a tool to stop state abusing its power. Also it was observed in this study that, international convention and treaties does not provide a substantial rights and protection for people and environment like the doctrine, due to the sovereignty rights of the state. Therefore, it is imperative to conclude that public trust doctrine is an effective mechanism to guide the behaviour of the state and protecting the environment, by allowing public to have a say in the management of its natural resources. Nevertheless the drawback of these findings is that state using it as a mechanism to refrain from contract with corporation or stop private land owner for making an effective use of its resources.

However, there is no doubt that public trust doctrine has created confusion in the legal world, but it has developed a well-defined judicial precedent where society views and environments are respected. However it does suffer some drawbacks due the lack of clarity between the public interest and economic purpose. The evidence from this study suggests that to ensure the effective use of this doctrine, it very important to draw attention on government decision making process and economic purpose. There should be more coordination and corporation between government and public interest group in future to address the dilemmas in the application of the doctrine and better understanding of the judicial interpretation of the doctrine. Secondly where there is likely of people livelihood to be destroy by an act of the state through the so-called economic purpose, it is vital for the state to perform an environmental assessment based on current and future prediction, an immediate reallocation of alternate resource to the public if it deem important for the resource to be used for economic purpose. Finally public trust doctrine should be make universal and given legal status in the international legal system to legitimise effective application at national court. Based on the evident presented in the study, I will conclude that I agree that “the emergence of public trust as a legal tool empowers environmental activists against powerful private and government interests that imperil natural resources” is accurate fact.

1. Reference

Book

Bracton, Henry. "Bracton on the Laws and Customs of England." Trans, and Ed. Samuel E. Thorne. Boston: Belknap-Harvard UP (1968)

Byrne, J. Peter. First coined the term "Green Property" In Green Property. 7 CONST. COMMENT. 239 (1990). cited in Frazier. supra note 24. at 301 n.10.

U.S. Fish and Wildlife Service Region 1, Ecological Services, "Public Trust Rights," (1978)

Journals and Articles

Blumm, Michael C. "Public property and the democratization of western water law: A modern view of the public trust doctrine." Environmental Law 19 (1989): 573. . file:///C:/Users/Emmanuel/Downloads/SSRN-id843844.pdf. <accessed on 6th March>

Boyle, Alan. "Human Rights or Environmental Rights? A Reassessment’ (2007)." Fordham Environmental Law Review 18:471

Burley, Anne-Marie. "Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, The." Am. J. int'l L. 83 (1989): 461

Frank, Richard M. "Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future, The." UCDL Rev. 45 (2011): 665

Johnson, Ralph W., et al. "Public Trust Doctrine and Coastal Zone Management in Washington State, The." Wash. L. Rev. 67 (1992): 521

Kameri-Mbote, Patricia. "Use of the Public Trust Doctrine in Environmental Law, The." Law Env't & Dev. J. 3 (2007): 195.

Lazarus, Richard J. "Changing conceptions of property and sovereignty in natural resources: questioning the public trust doctrine." Iowa L. Rev. 71 (1985): 631.

Lazarus. supra note 5.

Marzulla, Nancie G. "State Private Property Rights Initiatives As a Response to Environmental Takings." SCL Rev. 46 (1994): 613

Méndez, Juan E., and Salvador Tinajero-Esquivel. "The Cavallo Case: A New Test for Universal Jurisdiction." Human Rights Brief 8.3 (2001): 2.

Mumma, Albert. "Kenya’s new water law: an analysis of the implications for the rural poor." Workshop on African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa. 2005.

Owen, Dave. "Mono Lake Case, the Public Trust Doctrine, and the Administrative State, The." UCDL Rev. 45 (2011): 1099

Ryan, Erin. "Public Trust and Distrust: The Theoretical Implications of the Public Trust Doctrine for Natural Resource Management." Envtl. L. 31 (2001): 477

Sax, Joseph L. "The public trust doctrine in natural resource law: Effective judicial intervention." Michigan Law Review (1970): 471-566

Supra note 24, at 302.

Legislation

Article 21 in The Constitution Of India 1949. http://www.legalserviceindia.com/articles/art222.htm. <accessed on 10th March 2015>

Draft Principles on Human Rights And The Environment, E/CN.4/Sub.2/1994/9, Annex I (1994)

http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm. <accessed 5th March 2015>

International Covenant on Economic, Social and Cultural Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976, in accordance with article 27

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (Sept. 13, 2000); reprinted in 1 Afr. Hum. Rts. L.J. 40, entered into force Nov. 25, 2005

Rio declaration on environment and development 1992

Section 3 of the Kenya Water Act, 2002

United Nations general assembly resolution 3281 (XXIX).

Cases

6 N.J.L. 1 [1821, pp. 76-77.

6 N.J.L. 1 [1821, pp. 78

6 N.J.L. 1 [1821]. http://fas-history.rutgers.edu/clemens/NJLaw/arnold1821.html. <accessed on 8th March 2015>

Attorney General v. Parmeter, 10 Price 378, 147 Eng. Rep. 345 (Ex. 1811) aff'd by the House of Lords, under

Borough Of Neptune City v Borough of Avon-by-the-Sea, 294 A. 2d 47, 54 (N.J.1972)

Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1228 [2011] 9th Cir

Cinque Bambini P’ship v. State, 491 So. 2d 508, 512 (Miss. 1986); Nat’l Parks

City of Berkeley v. Superior Court, 606 P.2d 362 (Cal. 1980).

Conservation Ass’n v. Bd. of State Lands, 869 P.2d 909, 919 (Utah 1993)

District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1083 (D.C. Cir. 1984)

Doe I v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997)

Fomento Resorts and hotels Ltd. v Minguel Martins (2009) 3 SCC 571

High Court of Kenya at Nairobi, Miscellaneous Civil Application No. 118 of 2004

http://d2zyt4oqqla0dw.cloudfront.net/sites/default/files/documents/sahu_ii_dist_crt_dismissal_7.30.2014_0.pdf. <accessed on 9th March 2015>

http://www.state.nj.us/dep/cmp/access/public_access_handbook.pdf. <accessed on 10th March 2015>

Illinios Central. R.R. Co. V. Illinios (Illinios). 146 U.S. 387. 453-55 (1892)

Illinos Central Railward v Illinos (Illinios Central). 146 U.S. 387, 543-55 [1892]. https://supreme.justia.com/cases/federal/us/146/387/. <accessed on 1st March 2015>

India - M.C. Mehta v. Kamal Nath, WP 182/1996 (2002.03.15) (Beas River Case: Imposition of Exemplary Damages)

Just V Maritnette City., 201 N>W. 2d 761, 768 (Wis. 1972)

K. M. Chinnappa v Union of India AIR 2003 SC 724

Kenya: Waweru v Republic (2007) AHRLR 149 (KeHC 2006). http://www.chr.up.ac.za/index.php/browse-by-subject/339-kenya-waweru-v-republic-2007-ahrlr-149-kehc-2006-.html. <accessed on 9 March 2015>

Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659[2013]. http://www.oyez.org/cases/2010-2019/2011/2011_10_1491 <accessed on 8th March 2015>

Lawrence, 254 P.3d 606.

Mark v Whitney, 491 P.2d 374 (Cal. 1971)

McQueen v. S.C. Coastal Council, 340 S.C. 65, 68 [2000].

McQueen v. South Carolina Coastal. 354 S.C. 142 [2003]

Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709 (Cal. 1983).

Orion Corp. v. State, 747 P.2d 1062, 1073 (Wash. 1987).

Rettkowski v. State, 858 P.2d 232, 243 (Wash. 1993)

Sahu v. Union Carbide Corp., 548 F. 3d 59 - Court of Appeals, 2nd Circuit 2008.

Sierra Club v. Block, 622 F. Supp. 842 at 866 (D. Colo. 1985)

State of West Bengal v Kesoram Industries Ltd. (2004) 10 SCC 201

State v. Superior Court (Lyon), 625 P.2d 239 (Cal. 1981) (involving title to Clear Lake); State v. Superior Court (Fogerty), 625 P.2d 256 (Cal. 1981) (Lake Tahoe)

Th. Majra Singh v Indian Oil Corporation AIR 1999 J and K 81

the name of Parmeter v. Gibbs, 10 Price 412, 147 Eng. Rep. 356 (H.L. 1813)

The Royal Fishery of the River Banne, Davis 55, 80 Eng. Rep. 540 (K.B. 1610). Carter v. Murcot, 4 Burr

Website

http://www.earthrights.org/legal/defending-tipnis-indigenous-territory. <accessed on 9th March 2015>

http://www.un.org/en/documents/udhr/. <accessed 8th March 2015>

http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163. <accessed on 8th March 2015>

http://investmentpolicyhub.unctad.org/Download/TreatyFile/2778. <5th March 2015>

http://www.theguardian.com/business/2013/may/10/kofi-annan-exploit-africa-natural-resources <accessed on 4th March 2015>

http://magnacarta800th.com/wp-content/uploads/2013/02/Magna-Carta-History-and-Politcs-N-Saul-Lecture.pdf. <accessed 8th March 2015>

. http://heinonline.org/HOL/Page?handle=hein.journals/sclr46&div=39&g_sent=1&collection=journals#640. <accessed on 11th March 2015>

http://www.developmentprogress.org/blog/2014/10/16/brazil%E2%80%99s-tapaj%C3%B3s-river-dam-complex-lessons-failures-belo-monte. <accessed on 11th March 2015>

[1] Sahu v. Union Carbide Corp., 548 F. 3d 59 - Court of Appeals, 2nd Circuit 2008. http://d2zyt4oqqla0dw.cloudfront.net/sites/default/files/documents/sahu_ii_dist_crt_dismissal_7.30.2014_0.pdf. <accessed on 9th March 2015>

[2] http://www.earthrights.org/legal/defending-tipnis-indigenous-territory. <accessed on 9th March 2015>

[3] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659[2013]. http://www.oyez.org/cases/2010-2019/2011/2011_10_1491 ,accessed on 8th March 2015>

[4] Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1228 [2011] 9th Cir

[5] Doe I v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997)

[6] http://www.un.org/en/documents/udhr/. <accessed 8th March 2015>

[7] Draft Principles On Human Rights And The Environment, E/CN.4/Sub.2/1994/9, Annex I (1994)

[8] Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (Sept. 13, 2000); reprinted in 1 Afr. Hum. Rts. L.J. 40, entered into force Nov. 25, 2005

[9] Rio declaration on environment and development 1992. http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163. <accessed on 8th March 2015>

[10] United nations general assembly resolution 3281 (XXIX). http://investmentpolicyhub.unctad.org/Download/TreatyFile/2778. <5th March 2015>

[11] International Covenant on Economic, Social and Cultural Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966

entry into force 3 January 1976, in accordance with article 27

[12] http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm. <accessed 5th March 2015>

[13] http://www.theguardian.com/business/2013/may/10/kofi-annan-exploit-africa-natural-resources <accessed on 4th March 2015>

[14] Sax, Joseph L. "The public trust doctrine in natural resource law: Effective judicial intervention." Michigan Law Review (1970): 471-566.

[15] Illinios Central. R.R. Co. V. Illinios (Illinios). 146 U.S. 387. 453-55 (1892)

[16] Johnson, Ralph W., et al. "Public Trust Doctrine and Coastal Zone Management in Washington State, The." Wash. L. Rev. 67 (1992): 521.

[17] http://magnacarta800th.com/wp-content/uploads/2013/02/Magna-Carta-History-and-Politcs-N-Saul-Lecture.pdf. <accessed 8th March 2015>. See U.S. Fish and Wildlife Service Region 1, Ecological Services, "Public Trust Rights," (1978)

[18] Bracton, Henry. "Bracton on the Laws and Customs of England." Trans, and Ed. Samuel E. Thorne. Boston: Belknap-Harvard UP (1968).

[19] Attorney General v. Parmeter, 10 Price 378, 147 Eng. Rep. 345 (Ex. 1811) aff'd by the House of Lords, under

the name of Parmeter v. Gibbs, 10 Price 412, 147 Eng. Rep. 356 (H.L. 1813)

[20]The Royal Fishery of the River Banne, Davis 55, 80 Eng. Rep. 540 (K.B. 1610). Carter v. Murcot, 4 Burr

[21] 6 N.J.L. 1 [1821]. http://fas-history.rutgers.edu/clemens/NJLaw/arnold1821.html. <accessed on 8th March 2015>

[22] 6 N.J.L. 1 [1821, pp. 76-77.

[23] 6 N.J.L. 1 [1821, pp. 78

[24] Frank, Richard M. "Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future, The." UCDL Rev. 45 (2011): 665.

[25] Blumm, Michael C. "Public property and the democratization of western water law: A modern view of the public trust doctrine." Environmental Law 19 (1989): 573. . file:///C:/Users/Emmanuel/Downloads/SSRN-id843844.pdf. <accessed on 6th March>

[26] Illinos Central Railward v Illinos (Illinios Central). 146 U.S. 387, 543-55 [1892]. https://supreme.justia.com/cases/federal/us/146/387/.<accessed on 1st March 2015>

[27] Mark v Whitney, 491 P.2d 374 (Cal. 1971)

[28] http://www.state.nj.us/dep/cmp/access/public_access_handbook.pdf. <accessed on 10th March 2015>

[29] Borough Of Neptune City v Borough of Avon-by-the-Sea, 294 A. 2d 47, 54 (N.J.1972)

[30] Just V Maritnette City., 201 N>W. 2d 761, 768 (Wis. 1972)

[31] Section 3 of the Kenya Water Act, 2002. Also see Mumma, Albert. "Kenya’s new water law: an analysis of the implications for the rural poor." Workshop on African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa. 2005.

[32] Kenya: Waweru v Republic (2007) AHRLR 149 (KeHC 2006). http://www.chr.up.ac.za/index.php/browse-by-subject/339-kenya-waweru-v-republic-2007-ahrlr-149-kehc-2006-.html. <accessed on 9 March 2015>

[33] High Court of Kenya at Nairobi, Miscellaneous Civil Application No. 118 of 2004

[34] Kameri-Mbote, Patricia. "Use of the Public Trust Doctrine in Environmental Law, The." Law Env't & Dev. J. 3 (2007): 195.

[35] City of Berkeley v. Superior Court, 606 P.2d 362 (Cal. 1980).

[36] State v. Superior Court (Lyon), 625 P.2d 239 (Cal. 1981) (involving title to Clear Lake); State v. Superior Court (Fogerty), 625 P.2d 256 (Cal. 1981) (Lake Tahoe).

[37] Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709 (Cal. 1983).

[38] District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1083 (D.C. Cir. 1984); Sierra Club v. Block, 622 F. Supp. 842 at 866 (D. Colo. 1985); Cinque Bambini P’ship v. State, 491 So. 2d 508, 512 (Miss. 1986); Nat’l Parks & Conservation Ass’n v. Bd. of State Lands, 869 P.2d 909, 919 (Utah 1993); Rettkowski v. State, 858 P.2d 232, 243 (Wash. 1993); Orion Corp. v. State, 747 P.2d 1062, 1073 (Wash. 1987).

[39] Lawrence, 254 P.3d 606.

[40] India - M.C. Mehta v. Kamal Nath, WP 182/1996 (2002.03.15) (Beas River Case: Imposition of Exemplary Damages)

[41] Th. Majra Singh v Indian Oil Corporation AIR 1999 J and K 81

[42] Article 21 in The Constitution Of India 1949. http://www.legalserviceindia.com/articles/art222.htm. <accessed on 10th March 2015>

[43] K. M. Chinnappa v Union of India AIR 2003 SC 724

[44] State of West Bengal v Kesoram Industries Ltd. (2004) 10 SCC 201

[45] Fomento Resorts and hotels Ltd. v Minguel Martins (2009) 3 SCC 571

[46] Boyle, Alan. "Human Rights or Environmental Rights? A Reassessment’ (2007)." Fordham Environmental Law Review 18: 471.http://www.unep.org/environmentalgovernance/Portals/8/documents/Events/HumanRightsEnvironmentRev.pdf. < accessed on 10th March 2015>

[47] McQueen v. South Carolina Coastal. 354 S.C. 142 [2003]

[48] McQueen v. S.C. Coastal Council, 340 S.C. 65, 68 [2000].

[49] Marzulla, Nancie G. "State Private Property Rights Initiatives As a Response to Environmental Takings." SCL Rev. 46 (1994): 613. http://heinonline.org/HOL/Page?handle=hein.journals/sclr46&div=39&g_sent=1&collection=journals#640. <accessed on 11th March 2015>

[50] Ryan, Erin. "Public Trust and Distrust: The Theoretical Implications of the Public Trust Doctrine for Natural Resource Management." Envtl. L. 31 (2001): 477.

[51] Byrne, J. Peter. First coined the term "Green Property" In Green Property. 7 CONST. COMMENT. 239 (1990). cited in Frazier. supra note 24. at 301 n.10.

[52] See Frazier. supra note 24, at 302.

[53] Lazarus. supra note 5.

[54] Owen, Dave. "Mono Lake Case, the Public Trust Doctrine, and the Administrative State, The." UCDL Rev. 45 (2011): 1099.

[55] http://www.developmentprogress.org/blog/2014/10/16/brazil%E2%80%99s-tapaj%C3%B3s-river-dam-complex-lessons-failures-belo-monte. <accessed on 11th March 2015>

[56] Burley, Anne-Marie. "Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, The." Am. J. int'l L. 83 (1989): 461.

[57] Méndez, Juan E., and Salvador Tinajero-Esquivel. "The Cavallo Case: A New Test for Universal Jurisdiction." Human Rights Brief 8.3 (2001): 2.