Is Wildlife a Public Resource?


Public Trust Doctrine and Wildlife Conservation

 

What is the Public Trust Doctrine (PTD)? This legal concept originates from Roman civil law. Roman Emperor Justinian in AD 530, convened his top legal advisors to codify the laws of the Empire into what is referred as “The Institutes of Justinian.” The public trust was established in these laws, “by the law of nature these things are common to mankind – the air, running water, the sea and consequently the shores of the sea.”

 

Roman civil law was adopted by many countries in Europe including England. Parts of the Magna Carta embody the PTD. King John, when confronted by his Lords, agreed that ownership and disposition of rights to use England’s resources were to be held in trust for the benefit of the people. Regarding wild game, the King owns all the wild game in his sovereign capacity in “sacred trust” for the people.

 

Mary Christina Wood, Professor of Law at University of Oregon, wrote “Nature’s Trust”, 2014 Cambridge University Press and in her book she states, “public trust law demands that government act as a trustee in controlling and managing crucial natural assets. Held to strict fiduciary obligations, government must promote the interests of the citizen beneficiaries and ensure the sustained resource abundance necessary for society’s endurance.”

 

From Professor Wood’s definition, there exists a trustee and beneficiary in the public trust so it is a sui generis trust. The trustee must ensure that the environment and natural resources be managed for future generations.

 

This aboriginal proverb says it best, “we do not inherit the Earth from our ancestors; we borrow it from our children.”

 

Is wildlife a public resource? Yes, it is and therefore is governed by the Public Trust Doctrine. The leading case is, GEER v. CONNECTICUT, 161 U.S. 519, 534 (1896). The US Supreme Court stated the state-trustee must exercise its power over wildlife “for the benefit of the people, and not for the advantage of the government as distinct from the people or for the benefit of private individuals.”

 

The Alaska Supreme Court in Owsichek v. State of Alaska, Guide Licensing and Control Board, No. 5-1650, October 21, 1988 stated “the common use clause was intended to engraft in our constitution certain trust principles guaranteeing access to the fish, wildlife and water resources of the state.”

 

It has been suggested by legal scholars that the Public Trust Doctrine imposes an obligation on the state to;

  • consider the potential adverse impacts (on the wildlife resource) of any proposed activity over which it has administrative authority,
  • allow only activities that do not substantially impair the state’s wildlife resources,
  • continually monitor the impacts to ensure preservation of the corpus of the trust.

(D.G. Musiker, T. France, L.A. Hallenbeck, Law Rev. 16, 87 (1995).

 

The keystone of the North American Model of Wildlife Conservation is the principle that wildlife are owned by no one, but are to be held “in-trust” for the benefit of all the people by the government. This Model has been well adopted by many jurisdictions for developing its hunting policies, but most citizens by way of referendums and surveys, want wildlife conserved not hunted. This is particularly so with regards to large carnivores.

 

The above cases are both American and there is virtually no Canadian case law on the Public Trust Doctrine. However, the territories of the Yukon and N.W.T. have enshrined the public trust into their environmental legislation. In the Environmental Act of the Yukon, RSY 2002, C. 26, Section 2 defines the “public trust” – means the collective interest of the people of the Yukon in the quality of the natural environment and the protection of the natural environment for the benefit of present and future generations.

Section 6 – Right to a healthful natural environment

Section 7 – Declaration of the Public Trust

Section 8 – Right of action to commence an action, including against the Government of the Yukon.

 

These sections of the Environment Act, give the citizens of the Yukon Territory automatic standing before the Supreme Court to ensure that the natural environment is being managed well for the present and future generations. This includes wildlife because in the 2012 Yukon Wolf Conservation and Management Plan, this government document declares that the wolf will be managed in accordance with the public trust.

 

Surprisingly, there is virtually no Canadian case law on the Public Trust Document but the highest court in the land, the Supreme Court of Canada stated some very positive views on the Public Trust Doctrine in British Columbia v. Canadian Forest Products, Ltd., (2004) 2 SCR 74.

For a review of these comments, please refer to sections 73-81. Justice Binnie spoke for the Court when he said, “it seems to me there is no legal barrier to the Crown suing for compensation as well as injunctive relief in a proper case on account of public nuisance, or negligence causing environmental damage to public lands, and perhaps other torts such as trespass, but there are clearly important and novel policy questions raised by such actions. These include the Crown’s potential liability for inactivity in the face of threats to the environment, the existence or non-existence of enforceable fiduciary duties owed to the public by the Crown in that regard, the limits to the role and function and remedies available to governments taking action on account of activity harmful to public enjoyment of public resources, and the spectre of imposing on private interests an indeterminate liability for an indeterminate amount of money for ecological or environmental damage.”

 

Mr. Justice Binnie seems to be motivating the Crown (BC in this case) to invoke their fiduciary duty to act for the citizens of BC in a case against private interests that being Canfor.

 

The American judiciary are more activist, particularly when it comes to government inactivity. In the case, The Columbia River Salmon Litigation (1991 – Present), the National Marine Fisheries Service (NMFS), this federal agency was tasked with restoring the salmon in the Columbia River under the Endangered Species Act (ESA). NMFS offered four biological opinions over a number of years that were totally ineffective in restoring these salmon runs, so Judge James Redden of the Oregon Federal Court ordered a major release of water from the dams and threatened dam removal, if NMFS did not comply. Judge Redden stated, “courts do defer to administrative agencies, and they should, and I have. Experience, however, shows that the court should, and sometimes must, be more than a passive participant in the remand process….. The government’s inaction appears to some parties to be a strategy intended to avoid making hard choices and offending those who favor the status quo.

 

In this Columbia River case, the Federal Court had taken over supervision and management of this fishery, thereby ordering the federal agency to comply. Without this action, the inaction of NMFS would surely have resulted in the salmon runs disappearing. I think you can conjure up many Canadian cases of environmental inaction such as the Mountain Caribou case where the government continued to issue logging permits, heli-skiing licenses and road building while SARA required them to protect the Mountain Caribou habitat that was continuing to be fragmented and destroyed by this industrial activity.

 

Two examples where the Provincial Fish and Wildlife Branch of BC are not complying with the PTD is their management of wolves and grizzly bears.

 

In late 2012, the Province of BC asked for public comments on their Draft Wolf Management Plan. They received over 2,500 comments and 1,614 comments were opposed to their Plan. Each one of those people opposed to the Plan, asked that aerial shooting of wolves be forbidden. As the more than 160,000 signatures on the current online petition against the aerial wolf cull has demonstrated that this action has very little public support.

 

Many other conservation measures were recommended, such as banning poison, use of bait to hunt wolves, shorter hunting and trapping seasons, including not during the wolf pup rearing season.

 

When the Final Plan was approved 16 months later in April 2014, I reviewed both plans, word for word and found just cosmetic changes such as word changed or the odd paragraph deleted. It was clear that the entire recommendations of the 1,614 people were completely ignored. Why would you ask for public comments and then completely ignore what you received? This was an egregious violation of the democratic process and the “public trust”. As the US Supreme Court in Geer stated, “ the state-trustee (BC Fish and Wildlife Branch) must exercise its power over wildlife “for the benefit of the people, and not for the advantage of the government as distinct from the people or for the benefit of private individuals.”

 

Once they had completely dismissed this opposition to aerial wolf culling, The Province of BC had the audacity in its press release of January 15, 2015 to state that, “the Wolf Management Plan allows for measures such as targeted aerial wolf removal in support of caribou protection.”

 

The grizzly bear trophy hunt in BC has been an ongoing violation of the Public Trust Doctrine. Despite intense public opposition to this trophy hunt for the past twenty years, it only produced a short, four month moratorium imposed by the NDP government in 2001. This moratorium was immediately overturned by the Gordon Campbell Liberal Government upon its election victory.

 

Numerous public opinion polls show an overwhelming majority of BC residents are opposed to this hunt.

 

In September – October 2013, an InsightsWest poll showed 88% of BC residents were opposed to trophy hunting.

 

September 2013, McAllister Opinion Research poll found 87% of BC residents supported a ban on trophy hunting for bears in Great Bear Rainforest, up from 73% in 2008.

 

With this vast opposition of BC residents wanting “their” wildlife spared from trophy hunting, who is Fish and Wildlife managing this public resource for? For the BC Guide and Outfitters Association and the BC Wildlife Federation which are special interest groups with clear political ties to the BC Liberal Government.

 

The Fish and Wildlife Branch are violating their fiduciary duties as trustee of this public resource. Because they are managing it for the special interests groups rather than the public as they are required to under the Public Trust Doctrine.

 

They are not managing this public resource from an economic perspective either. The CREST/Stanford University study of January 2014, titled “Economic Impact of Bear Viewing and Bear Hunting in the Great Bear Rainforest of BC” , compared the economic value of bear viewing versus bear hunting.

 

The overwhelming conclusion of the study demonstrated that bear viewing generates far more value to the BC economy than bear hunting.

  • Bear viewing revenue in 2012: $15.1 million
  • Bear hunting by resident & non-resident: $1.2 million
  • Direct revenue to the BC government: $7.3 million for bear viewing and $660,500 for bear hunting
  • Bear viewing companies employed 510 jobs directly compared to 11 jobs for guide outfitters
  • 11,369 visitors travelled to Great Bear Rainforest to view bears as compared to 186 hunters (resident & non-resident).

 

What is the future for the Public Trust Doctrine?

 

The more compelling question is how will the Public Trust Doctrine assist in the development of Canadian environmental law? Andrew Gage, in his paper, Public Environmental Rights: A New Paradigm for Environmental Law?, stated “environmental lawyers have failed to articulate a compelling story about the legal nature of environmental problems.”

 

Gage further states, “it is my view that the existence of common law environmental rights provides the basis of a story that can be used to frame environmental problems in an entirely different light.”

 

Two Oregon teenagers are attempting to frame the environmental problem of climate change in an entirely different light. Kelsey Juliana (18) and Olivia Cherniak (14) are suing the State of Oregon because the state is not protecting their environment (atmosphere) and that Oregon has a fiduciary duty under the Public Trust Doctrine to protect their future.

 

This case is attracting a great deal of legal attention because the Oregon Court of Appeal has compelled the lower court (Lane County Circuit Court) to decide whether the atmosphere is a public trust that the state has a duty to protect.

 

Most legal scholars feel that the teenage plaintiffs have an uphill legal battle to succeed but it has planted the legal seed that governments have a fiduciary duty to protect the atmosphere for today’s youth. But equally important, this case has shifted the debate about climate change from government committees where the youth have no input into the courts where they can argue their case and hopefully win.

 

Wildlife advocates need to follow the path of Kelsey and Olivia and petition the court to rule that wildlife managers from the Fish and Wildlife Branch of BC do not own the wildlife but are accountable as trustee to all the people of British Columbia. Once BC’s wildlife has been removed from their parochial control and managed under the Public Trust Doctrine then real conservation will occur.