The potential of the trusteeship theory for Canadian public law and environmental governance

Introduction

In 1970, when the international community was beginning to demonstrate awareness of the human impact on its natural environment,¹ Joseph L. Sax published one of the most-cited articles of all time (Shapiro and Pearse 2012, 1490), “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,’’ as a reaction to the increasing number of lawsuits brought against governmental agencies that are supposed to protect the public interest and natural resources in the United States (Sax 1970,473-474). Sax believed the increase in lawsuits was in part due to inconsistency in legislative responses and administrative actions. The public trust doctrine is the legal approach Sax suggested as the most likely to obtain effective court intervention related to environmental problems (Sax 1970, 473-474). Other similar concepts redefining government obligations toward the environment have emerged in the legal and political literature proposing solutions to government inaction to protect the environment, including parens patriae (Estey 1972, 576; Kenner 2005, 100-101), stewardship (Halley and Sotousek 2012; Barritt 2014), nature's trust (Wood 2013) and trusteeship (Brown Weiss and Ferry 1989). These concepts and theories all rely on the central proposal of imposing fiduciary duties on the government and consider the natural environment to be the common patrimony or property of citizens. The government would therefore have to act in the best interest of its cunent citizens and future generations.

In her 2013 book, Nature’s Trust: Environmental Law for a New Ecological Age, Professor Mary C. Wood argues in favor of infusing current environmental law with trust principles in order to make it more protective. Wood explains that current governmental decision-making based on discretion has proven ineffective for environmental protection (Wood 2013, 15-16). Discretion-based decision-making allows the executive—that is, government agencies—to consider single monetary interests and short-term considerations when it exercises delegated rule-making, issues technical determinations of a project’s impacts or chooses to enforce regulations (Wood 2013, 68—69). By comparison, imposing a fiduciary obligation would force the government to act in the best interest of citizens and future generations and to protect the natural assets on which their future depends, in addition to making the government more accountable (Wood 2013, 138—139, 203-204).

Professor Klaus Bosselniaun suggested the adoption of trusteeship as an overarching framework to establish better international environmental governance in his 2015 book Earth Governance: Trusteeship of the Global Commons. For Bosselmann, “political leaders and the [state-centered] structure of international governance appear incapable of responding to [an emerging ecological crisis] in an effective way: there is not only a democratic deficit but an ecological deficit as well” (2015, 1). Bosselmann therefore creates a governance model that would reconcile democracy with ecological well-being. The task of this book, he expiants, is to “help establish a culture of democracy powerful enough to achieve sustainable societies” (2015, 21-23). This task includes separating markets from the commons by reshaping state sovereignty, empowering governments to define the functions and legitimacy of the market and restructuring democracy to protect the commons. The solution to the ecological predicament is to establish a value-based democracy that should not be confined to nation-states, but rather should be shared internationally to achieve “earth governance” of this universal concern (Bosselmann 2015, 29-30).

In this chapter, I argue that the trusteeship theory, as conceived by Wood and Bosselmann, provides a promising model of fiduciary governance of the environment, building on the experience with, and critiques of, the public trust doctrine. Such a model would allow for a rapid paradigm shift toward ecological responsibility in public governance by using tools and concepts that are already known to jurists. This is especially true in Canada, given the similarities between the concepts of “pttblic interest,” “accountability,” “impartiality” and “fairness” that are used in Canadian public law and in the trusteeship literature. It thus sets out a path for deriving from the actual “command and control” approach that dominates our political system (Reid and Nsoh 2016).

The government—in the Canadian model of parliamentary sovereignty— already acts in the public interest, already is accoimtable to Parliament and already must be loyal and equitable to its citizens according to responsibilities set by public law (Hogg 2007, 1:12-2). However, this model of governmental responsibility is lacking an understanding that the goal of preserving nature is not done only to avoid damages. Rather, governments should take on the greater responsibility to let nature thrive and to recognize the interconnectedness of humanity and nature. This interconnectedness should inform our obligations toward future generations of humans to ensure their survival by preserving the Earth’s ecosystems upon which we depend (Reid and Nsoh 2016, 4, 15). The trusteeship theory comprises the ethical foundation to translate human responsibility toward nature and their interconnectedness into administrative action to address the mounting ecological challenges of the Anthropocene. This first section of this chapter sets out the foundation principles of the trusteeship theory and distinguishes it from the American public trust doctrine. The second section explores Wood and Bosselmann’s views on the theory, and the third section explains the potential of the theory to transform Canadian environmental governance given the compatibility of its public law with fiduciary principles.