safeguarding public resources. 3

APPLICATION OF THE PUBLIC TRUST

DOCTRINE IN NIGERIA

SAFEGUARDING NATURAL RESOURCES:

AFINOWI OLUBUNMIDEPARTMENT OF PRIVATE AND PROPERTY LAWUNIVERSITY OF LAGOS

Clarification of terms Natural Resources; Natural Resources are materials occurring in

Nature that have a potential economic value or which provide for the sustenance of life. The term also comprises environmental features that serve a community’s well being or interests.

Public Property; Public Property are properties jointly owned or belonging to the generality of people in a State or Community. They are reserved solely for public use and benefit. These properties in order to forestall disorder or abuse are vested in the government for proper administration, management and use for the common benefit of all.

Public Rights; Public Rights are the interests of members of the public in natural resources or public properties within their State or Community

APPLICATION OF THE PUBLIC TRUST DOCTRINE IN NIGERIA

An overview of the Public Trust Doctrine The Public Trust Doctrine has its origin

in English and Roman Law. According to ancient Roman law, certain things are by nature common to all – the air, running water, the sea, the sea-shore, the soil and the sand beneath the sea, rivers and river banks. These things were perceived as property of the State held for the benefit of all. They were known as the Res Commune


The Public trust Doctrine in England was to the effect that the Crown held certain Royal Forests and Pastures for the benefit of all Englishmen for the conservation of certain birds and game and sustenance of livestock. Though referred to as the Kings lands, all citizens had to right to graze their livestock on these lands. The Doctrine later advanced in England to check the excesses of the King in apportioning all lands to himself at the expense of all.

The Public trust Doctrine as it was later to be known has its origin in England, it was used at a time to conserve wildlife, by vesting them in the Crown to avoid abuse by all and sundry, later in order to tackle air pollution, the air was vested in the government as guardian of “this common, public necessity”.

By 1865 judicial pronouncements had been made based on the Public Trust Doctrine, in Gann v Free Fishers of Whitestable (11 English Reports ER 1305 (1865) HL) it was held that “ the bed of all navigable waters…and all estuaries or arms of the sea, is by law vested in the crown. But this ownership of the crown is for the benefit of the subject and cannot be used in any manner so as to derogate from, or interfere with the right…which belongs by law to the subject of the realm”.


The PTD creates a Trust relationship between the government and the citizenry, with the later being the beneficiary and the former the Trustee.

The subject matter of the Trust is the common property or resources dedicated to the common use and benefit of all either by nature as is the case with rivers and riverbanks, seas and sea shores, water, air etc, or by the general consensus of the populace through Statutes as is the case with Forests, Conserved Wildlife, Natural and Cultural resources, etc.


Scope of the Doctrine The application of the Public Trust Doctrine was initially limited to navigation and

navigable rights, fishing and commerce at coast lines and seashores. The Public trust doctrine has however over time been subjected to varied

interpretations and applications ranging from the conservation of wildlife to the prevention of waste or abuse of public property.

The Doctrine is also applicable to ensure sustainable development and preservation of cultural heritage, and the preservation of the environment.

The PTD has also been invoked to prevent the government from allowing inherently public property pass into private hands, and where such properties are legally and rightfully passed into private hands the doctrine has been used to ensure that such properties are used in a way that will safeguard the interest of the generality.

Further the Doctrine has been invoked to compel officials of government to carry out their duties in relation to Public Properties.

The Doctrine has also been applied to protect fragile and ecologically important lands like fresh water, wetlands riparian forests and disappearing biodiversity.

The Doctrine is of such a versatile nature that it spans property law, constitutional law, environmental law, natural resources law, and public lands law.


Evolution of the Public Trust Doctrine The main proponent in the re-emergence

of the Public Trust Doctrine is Sax. According to him:

the Public Trust Doctrine is a useful vehicle of judicial oversight to promote democratization of legislative or administrative decision making with respect to publicly owned properties;


Evolution of the Public Trust Doctrine According to Hu, the Public Trust Doctrine

demonstrates that the social responsibility model of stewardship requires not only the government, but also the judiciary, and even individuals as members of the public, to be the stewards of public resources.

According to Schyff, In order to be an effective tool in the trade of environmental protection, the public trust doctrine had to possess three characteristics. It had to create an obligation that could be enforceable against the government, it had to vest some concept of a legal right in the general public, and it had to be capable of being interpreted consistent with contemporary concerns for environmental quality.


The Public trust Doctrine at work in Other Jurisdictions India : In M.C. Mehta v Kamal Nath & Others the Span Resort proposed to

built a club on the banks of a river encroaching land including substantial forest land which was later regularized when Kamal Nath was the Minister. It was stated that earth movers and bulldozers were used to turn the course of the river in an effort to create a new channel by diverting the river flow, and save the club from future floods. The Supreme Court held that the lease of the land to the club violated the public trust doctrine.

The Court observed that the Public Trust doctrine rested on the principle that certain resources like air, sea, waters and the forests have such a great importance to the public as a whole that it would be wholly unjustified to make them a subject of private ownership.

The Court further held that the doctrine was part of indian law having been inherited from English Common law which prevented the aesthetic use and the pristine glory of the natural resources, the environment from being eroded for private, commercial or any other use unless the courts find it necessary in good faith and for the public good to encroach upon such resources.


The Ugandan public trust doctrine first appeared in a 2004 decision of the High Court of Uganda at Kampala in Advocates Coalition for Development and Environment (ACODE) v. Attorney General. In this case, Kakira Sugar Works had a longstanding lease to take firewood from the Butamira Forest Reserve for its sugar refinery. Kakira applied for a fifty year permit from the National Environmental Management Authority to transform the forest reserve into plantation lands. The government granted the permit, and ACODE challenged the permit on public trust and statutory grounds. The Court held that the management authority breached its public trust duty under both the Ugandan Constitution and statutes by not obtaining the consent of the local community and not performing an environmental impact assessment.

The Public Trust Doctrine as applied in that case was founded on the Constitutional provisions that the government shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserves, game reserves and any land to be reserved for ecological and tourist purposes for the common good of all citizens.


In the Kenyan Experience in the case of Waweru v. Republic which involved the dumping of sewage in the Kiserian River, the Court suo motu applied the Public Trust Doctrine. While interpreting the constitutional right to life to include the right to a clean and healthy environment, it pointed out that both rights are derived from Natural Law, and linked to the PTD the essence of which is that the State as a trustee is under a fiduciary duty to deal with trust property being the common natural resources in a manner that is in the interest of the general public.


In Pakistan, the Doctrine was applied in the case of Oposa v Factoran, in that case a group of school children filed a class action challenging Timber licenses issued by the Department of Environment and Natural Resources.

The Supreme Court held that the children had the right to bring the action on behalf of themselves and future generations concerning environmental and intergenerational equity. The Court held that the children had a right to a healthy environment because it concerns self preservation and self perpetuation which need not be written in the Constitution as they flow from Natural Law which imposes on government a solemn obligation to preserve a healthy ecology and protect public health for the present and future generations, lest they inherit nothing but a parched earth incapable of sustaining life.


Public Trusteeship under Nigerian Legal System The 1999 Constitution of the Federal Republic of Nigeria vests all Natural

resources occurring on Nigerian soil, in Nigerian Territorial Waters, Exclusive Economic Zone and Continental Shelf in the Federal Government. (Section 44(3));

In addition to this, the 1999 Constitution in section 20 states that the government undertakes to protect and improve the environment, safeguard the water, air and land, forest and wild life of Nigeria.

Further, the Constitution prohibits the exploitation of natural resources in any form whatsoever other than the good of the community.

The Exclusive Economic Zone and the Territorial Waters Act provide that the Federal Government is to exercise sovereignty as well as exploit the resources in the EEZ and the TW.

The Land Use Act vests all land within a State in the Governor of the State who is to manage and administer same for the common benefit of all Nigerians, to this end each State has the duty of making laws to safeguard the land resources and the general environment within the State as well as regulating Land Management therein;


Factors affecting the Public Interest Litigation in Nigeria The Procedural Issue of Locus Standi, the

Concept of locus standi is based on common law and is to the effect that a party in order to sue must have sufficient interest in the subject matter of litigation.

The Non- justiciability of Chapter 2 of the 1999 Constitution

The loose concept of Government Trusteeship in the Nigerian Legal System


A New Approach to the Public Trust Doctrine in Nigeria As has been highlighted the Public Trust Doctrine is inherent in the Nigerian

Constitution and other Statutory provisions. All that is left practical application of the Doctrine.

The doctrine as glimpsed is one that is all encompassing and cuts across many frontiers, it is a veritable legal tool to challenge the ineptitude of the legislature and recklessness of the Executive as far as jointly held resources are concerned.

The Doctrine will aid the sustenance of environmental actions that would hitherto have been dismissed on grounds of non-justicaibility.

With the aid of the PTD, incessant waste and play of philanthropies with public property and hiding under the cloak of Executive Immunity will cease as there is no better time to hold the members of the government accountable for the abuse of public trust than when they still occupy the office.

Above all, the Doctrine will avail the opportunity to compel the government or its officials (under the principle of public guardianship) carry out duties imposed on them by Statute with respect to all natural, terrestrial, aquatic and cultural resources within the Nigerian Nation.


Public Trust Doctrine in Practice Compel the government to tackle issues of - Erosion in the South South Deforestation and Desertification in the North Flooding in the West due to blocked drainages

and constructions on waterways, sand filling of marshlands, lakes and rivers

Wreckages and carcasses of vessels on our coastline

Gas Flaring in the Niger Delta River Dredging to forestall rivers overflowing

their banks. The list is endless!


A Closing Remark A photograph of a walled city in northern China. Four or five hundred

years ago this City had been the center of the populous and prosperous district. A district whose mountains and ridges were covered with significant trees. Its streams flowing without interruption and its crops in the valleys prospering. It was known as one of the most prosperous provinces in China, both as a lumber exporting center and as an agricultural community.

Today the picture shows the walled town, almost as it stood 500

years ago. There is not a human being within the walls. There are but few human beings in the whole region. Rows upon rows of bare ridges and mountains stretch back from the City without a vestige of tree life, without a vestige of flowing streams and with the bare rocks reflecting the glare of the sun. Below in the plains the little soil which remains is parched and unable to yield more than a tiny fraction of its former crops. This is the best example I know of the liberty of the individual without anything further.“ (Paul M. Bray, JD, Albany, New York excerpt of a speech presented at the Council of Georgist Organizations Conference on July 13, 2010 in Albany, New York. )

If the government is not called to fulfill their role as a trustee of Public Property, this will be the story in Nigeria and many places as we know them today will only have existed “once upon a time”.


THANK YOU FOR LISTENING.


safeguarding public resources. 3

Documents