The Public Trust Doctrine is a principle of governance that all citizens and their leaders must embrace to save the planet and its people from looming catastrophe. Its goal is simple — to see that every person has unrestricted access to the essential gifts of nature, such as fresh air and clean water, necessary for sustaining life. Since the fall of 2013, the Gulf Islands Alliance has been pressing — so far, without success — Islands Trust Council to adopt the Public Trust Doctrine into the Trust Policy Statement, its legislative bulwark. Following are GIA’s presentations to Council:
The Gulf Islands Alliance (GIA) believes that, long term, the greatest threat to the islands and achieving the Islands Trust mandate is climate change.
In a deputation to you last December GIA requested Trust Council to incorporate the Public Trust Doctrine into your Policy Statement to guide your climate change decisions. Chair Sheila Malcolmson replied, “Trust Council did not pass a motion in response… and we look forward to hearing more from you.” This is GIA’s answer to that invitation:
Every day there is more evidence that climate change is an unfolding tragedy on a scale unprecedented in human history. GIA believes the simple but comprehensive Public Trust Doctrine — it enshrines a most fundamental human right — provides the framework and motivation to seek and apply the best solutions to climate change. By adopting the doctrine Trust Council would acknowledge that
— climate change represents a growing and significant threat to the Islands Trust mandate to preserve and protect our precious natural environment
— all people have a right to clean air and water. They are essential to life and not commodities to be sold, used and abused by the highest bidders
— all governments and individual legislators are trustees with a duty to protect and/or restore these life-sustaining necessities when they are damaged.
By embracing the Public Trust Doctrine, Islands Trust would put a pure democratic and inspired face on its climate-change action and advocacy work and advance its stature as a model of leadership and hope for all governments.
Since our first presentation to you when GIA outlined the court actions on behalf of children and future generations initiated in several US states, a new suit has been launched against six federal agencies with powers to regulate greenhouse gas emissions. It is before the US Court of Appeals for the D.C. Circuit. Proponents argue that continuing access to clean air and water is a basic human right, not subject to political discretion. Specific to the suit is the alleged failure of government to attempt to restore atmospheric carbon dioxide pollution to 350 parts per million, a recognized threshold to avoid catastrophe. This failure, particularly in resource-rich Canada, ironically speeds us faster to more severe encounters with climate consequences.
The Intergovernmental Panel on Climate Change this spring released the third of its three new reports that confirmed climate change is man-made; it already damages crops, spreads disease, acidifies the oceans; it will one day cause wars and mass migrations; and the average amount of emissions is increasing 2.2 percent annually worldwide instead of decelerating by a needed pace of 6 percent.
Last month even the Toronto Dominion Bank, who owes much of its fortune to fossil fuel industry business, noted the accelerating incidence of climate-change-related events such as floods (in Calgary and Toronto), droughts, storm surges, wildfires, landslides, and wide temperature extremes. The bank “strongly advised government leaders and corporate decision-makers … to start thinking of the long-term implications of inaction.”
GIA urges you to adopt the Public Trust Doctrine as policy. Each of us, trustees and private citizens, must do everything we can to conquer and/or cope with the consequences of climate change. To give in to notions that the problem will never visit our islands, that it’s too big, that it must be tackled only by others or that it doesn’t require immediate action equal to its global importance is morally indefensible. In his brilliant new book, Windfall, about investors already profiting from climate change (such as by buying vast tracts of farmland to profit from expected climate-based food shortages and famine), McKenzie Funk says: “Climate change is often framed as a scientific or economic or environmental issue, not often enough as an issue of human justice.”
The Gulf Islands Alliance asks you bring the Public Trust Doctrine into your program to fight climate change.
The Doctrine is a simple, compelling notion of justice, survival and leaving this world a livable place for our children and future generations.
It says that vital natural services, particularly clean air and water, that keep us alive also belong to us. And that governments, as trustees, have a moral and legal duty to safeguard these priceless assets.
Invoking the Doctrine — it inspired Roman Law and even the Magna Carta — has never been more important than now as we fight to reclaim our atmosphere from pollutants that will otherwise cause more and more destruction and death. Nature’s law shows no mercy; if we don’t abide by it, we will suffer its consequences. Human and environmental health march in lockstep.
Islands Trust’s unique governance system is ideally suited to embrace the Doctrine to help you preserve and protect against our greatest threat, climate change. In a recent strategic plan, you featured “the objective of minimizing the impact of climate change upon the islands (which) are particularly vulnerable to the effects of climate change.” Among threats you identified were an increased strain on social and economic systems; rising sea levels and storm surges causing saltwater intrusion of aquifers; infrastructure damage; and loss of biodiversity and habitat, cultural and historic sites. Many observers would call these just the start of the climate horrors to come. The long term cost of coping with climate change will make present fossil fuel profits — promoted in Ottawa and Victoria and elsewhere — look like pocket change by comparison. We’re disappointed that when time itself is the most precious resource being squandered the Trust sometimes pushes aside its climate policy work.
We asked the UVic Environmental Law Clinic how trust law principles may apply to Islands Trust duties and powers and bolster environmental protection of the trust area. The Trust Act seemed largely consistent with the Public Trust Doctrine. The Act employs trust language. You are all trustees. Common law dictates the “standard of care and diligence required of a trustee in administering a trust is that of a man of ordinary prudence in managing his own affairs.” You oversee a trust area. You claim to be entrusted as “the only government in Canada and, perhaps, the world, with a legislated mandate to preserve and protect a special area”. The Clinic reported to us that, although it’s unclear whether Islands Trust simply appropriates trust language or it actually adopts trust law into new areas, the Act clearly imposes a duty on trustees to act in accordance with its mandate. And this may give the Trust substantive powers beyond those of other local governments. While trusts generally are for the benefit of a person, they can serve public interest purposes. The Clinic noted that “Courts are increasingly imposing liability on trustees for environmental degradation of trust property… The general public may also be considered the beneficiary, where the government is deemed to occupy the role of trustee.”
While these facts would appear to tie Islands Trust to the Public Trust Doctrine, making a legal case for it would be long and complicated. Our case is not legal or complicated; it’s about doing what’s moral. The Doctrine says government officials are trustees there solely to protect the public’s common property and restore it if and when it’s damaged. It’s everyone’s right, not a privilege that waits on legislators to grant or not. It trumps any contrary discretion claimed by a crown or state. In a groundbreaking decision last year, a Texas judge ruled the sky belongs to everyone. It’s a public trust.
Islands Trust can’t save the world against climate change. Such a catastrophic threat can only be subdued by a response of equal or greater strength. Our point is that you can’t even save the Trust Area if climate change isn’t defeated. Adopting the Doctrine, first as a refreshing, hopeful attitude — and then, say, by incorporating it in your Policy Statement or declaring your jurisdiction a ‘public trust’ area — will advance the stature and influence of Islands Trust as a model and advocate of public trust on our islands and beyond. Time has run out on old, failed solutions.
This presentation is too brief to represent the rich history and promise of the Public Trust Doctrine, one we plan to share with islanders in coming months.