Trusteeship theory

Foundational principles

Developing a legal doctrine based on trust is not a new idea. In addition to the public trust doctrine already applied in the United States and in other common law jurisdictions (Blumm and Guthrie 2011, 745), other countries have adopted public trust-inspired legislation,² and many authors have suggested mechanisms or governance frameworks based on trust at the international level (Stone 1994; Barnes 2001; Sand 2004, 55-56; Sa 2008; Benvenisti 2013, 295-333). The trusteeship theory' set out by Mary C. Wood and Klaus Bossehnann, considered from a different perspective, would allow the State to adopt a holistic approach to nature management and to consider the interests of future generations and nature itself when making decisions (Wood 2013, 191; Bossehnann 2015, 39-40). One of the goals of this theory is to increase the duties of government toward the environment and future generations, and therefore remedy the lack of accountability of government representatives and the insufficient number of long-term measures that consider future generations' environmental interests. The duties in question are those that traditionally exist in a fiduciary' relationship, more specifically that exist under a trust,³ as the name of the theory suggests. A fiduciary relationship is one where the holder “has rights and powers he or she must exercise for the benefit of' another person (Yogis and Cotter 2009, 111). The fiduciary has a duty of loyalty, which means that she must not benefit from the position she holds unless explicitly authorized by the other person. Other fidttciary obligations derive from this duty of loyalty (Gillese 2014, 10). Where fiduciary duties protect relationships that are of importance to the public—for instance, solicitor-client, guardianward, director-company and principal-agent relationships—the trust-beneficiary' relationship is the most stringent because the trustee has control over a property that belongs to another, the beneficiary (Gillese 2014, 10-11). The trustee will consequently be held to the highest fiduciary standards. Another element that distinguishes the trust from other fiduciary relationships is that “a trust relationship cannot exist without trust property’’ (Gillese 2014, 11).

The traditional fiduciary duties a trustee must respect in addition to the duty of loyalty are: the obligation to perform personally, the duty to invest the trust assets, the obligation to act impartially, the dirty to account and the duty to provide information (Gillese 2014, 130, 155). If governments were to apply these duties, it would obviously translate into types of action other than a private trust. As an example of these other causes of action, it could force a government to take positive actions toward the environment, not only conservative ones, as the government would have the duty to make nature thrive (that is, to “invest trust assets”)(Bossehnann 2015,193). The trusteeship also allows citizens to undertake lawsuits against it in case of omission, in ways similar to the public trust doctrine currently applied in the United States (Wood 2013, 221). This raises questions of how these trusteeship approaches to environmental law can be meaningfully differentiated from the public trust doctrine. In fact, the public trust doctrine is a type of “trusteeship in action," but the trusteeship theory considered in this chapter has broader application, as is suggested by Wood and Bossehnann (Wood 2013, 125; Bossehnann 2015, 180-183).