New Zealand Journal of Environmental Law
Last Updated: 30 January 2023
A Public Trust Doctrine for Hong Kong
Berry Fong Chung Hsu*
The public trust doctrine is a traditional common law principle stating that certain resources are common property, and that the state is legally obligated to control and manage them for the welfare of the public, subject only to the paramount and reasonable needs of other users. This article explores the enforceability of the public trust doctrine in common law and its possible recognition in Hong Kong. This doctrine is controversial. This article first investigates the evolution of the doctrine. Secondly, it discusses the limits of private property rights. Thirdly, it analyses the common law jurisprudence in determining whether a trust obligation can be imposed on the state. The fundamental issue is whether the people have an inherent or vested right to the use and enjoyment of natural resources. A stronger case can be made when there is a constitutional home for the doctrine. Fourthly, this article surveys the common law jurisdictions which recognise this doctrine. By way of conclusion, the role of the judiciary in environmental protection will be discussed.
The public trust doctrine is a traditional common law principle stating that certain resources — for example, air, land and water — are common property, and that the state is legally obligated to control and manage them for the welfare of the public, subject only to the paramount and reasonable needs of other
*BSc, LLM (Alberta), MA (Oregon), PhD (London), C Eng (UK 1991); barrister and solicitor (Supreme Court of Victoria and High Court of New Zealand), Professor, Department of Real Estate and Construction, and Deputy Director, Asian Institute of International Financial Law, Faculty of Law, University of Hong Kong (China). The author wishes to thank Professor Lusina Ho, Faculty of Law, University of Hong Kong (China), for her very valuable advice. All errors are mine.
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users.1 After the People’s Republic of China (China) resumed the exercise of sovereignty over the Hong Kong Special Administrative Region (Hong Kong), the Basic Law of the Hong Kong Special Administrative Region (Basic Law), as a form of constitutional document, prescribes the legal system to be practised in Hong Kong.2 Although the Basic Law does not specifically impose a duty on the executive government of Hong Kong to enact adequate environmental protection legislation, arguably it has an implied duty under the Constitution of China (Chinese Constitution) and the Basic Law to act accordingly.3 The question is whether or not this duty imposes a legal obligation or it is merely a moral or political duty. Under such circumstances, it is timely to explore the public trust doctrine in detail and its applicability in Hong Kong. As this doctrine was founded upon the idea that certain common properties should be held by the state in trust for the people,4 it may be referred to as a set of legal rules that limit the power of the state to dispose of public property.5
This article explores the enforceability of the public trust doctrine in common law and its possible recognition as part of the laws of Hong Kong. This doctrine is controversial and has been explicitly recognised by only a few common law jurisdictions. The application of this doctrine to new circumstances may not be readily acceptable. Its advocates suggest that it originated from Roman law and became the law of England. It was incorporated in the Magna Carta (see text below at fn 30). Later, it became the common law in the United States of America (US). Although this doctrine is the subject of many academic articles, particularly in the US, as well as a number of authoritative cases in the common law world, it has been judicially extended beyond the scope of water resources and waterways in only a few common law jurisdictions. The highest courts in India, Kenya and Sri Lanka have accepted a broader definition of the public trust doctrine as expounded by academic articles and extended this doctrine to all natural resources.6
This article first investigates the evolution of the public trust doctrine from Roman law to common law. Secondly, it discusses the limits of private property rights, establishing that, at common law, no property right gives absolute title over its usage. This provides justification for the public trust to encroach on
9 and 10.
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private property owners’ rights in order to protect the environment. Thirdly, it analyses the common law jurisprudence in determining whether or not a legal obligation as trustee can be imposed on the state. Then, it will discuss whether the public trust is a legally enforceable trust. The recognition of the public trust doctrine depends on whether or not the courts would recognise environmental resources as common property entitled to be maintained and protected for the interest of the public as owners, subject to the paramount and reasonable needs of other users.7 This article argues that the fundamental issue is whether or not the people have an inherent or vested right to the use and enjoyment of natural resources in common law. A stronger case can be made when there is a constitutional home for the public trust doctrine. Fourthly, this article surveys the common law jurisdictions which recognise this doctrine. In conclusion, it is argued that recognition of this doctrine in Hong Kong very much depends on the attitude of the judiciary. When environmental legislation fails to protect the public, this doctrine should have an important role to play.
2. THE EVOLUTION OF THE PUBLIC TRUST DOCTRINE
The intention of the public trust is to prevent the expectations of the commons from being destabilised.8 In other words, its function as a common law doctrine is to protect the people against destabilising changes, similarly to the need to protect conventional private property.9 The sustainability of fishery interests and forestry is a case in point.10 The tradition of the commons in medieval Europe can be regarded as a source of the modern public trust doctrine.11 For example, an 11thcentury French regional law declared that running water and springs, meadows, pastures and forests were not held by the lords but that the people should always be able to use them.12 Although modernday environmental protection law became fashionable from the 1970s, environmental protection law has a common law basis traceable back to Roman law. Legal historians credit contemporary public trust jurisprudence to the inspiration of the Justinian Institutes (529), which stated that:13
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By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea.
In recent years, that passage on the law of nature has been quoted with approval by the highest courts in Canada and India in adjudicating envi ronmental cases.14 The public trust doctrine is not difficult to explore.15 Originally, it imposed a fiduciary obligation on the Crown on alienation of certain properties — for example, lands below navigable waters.16 Its roots can be traced back to the common properties concept (res communis) in Roman law and the Magna Carta.17 In England, leading legal writers in the medieval period were mostly trained in Roman law and Canon law.18 Henry de Bracton (1210–1268), whose work was described as “the crown and flower of English medieval jurisprudence”, had the first part of his treatise correspond with the Justinian Institutes.19 Natural law is the jurisprudence that there are universal moral principles inherent in human nature and in the divine order of nature.20 Accordingly, running water, air and the shores of the sea are common resources.21 Bracton further elaborated that, according to jus gentium, public things belong to all people and are for the use of mankind alone, and those resources that belong to all living things may sometimes be called common.22 William Blackstone (1723–1780) said that natural law, being coeval with mankind and dictated by God himself, is the superior law which prevails over all human laws.23
The public trust doctrine arises from the jurisprudence that certain resources are so essential to human life that the state should prevent them from being captured by private interests.24 The idea of property law is to protect the
21 Ibid, at 39–40.
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reasonable expectations of an owner in the enjoyment of his property.25 There should be a balance between public rights and necessary development.26 In a broader context, the protection of stability has to be addressed by law.27 At the turn of the 13th century, many waterways were held by private individuals who obstructed navigation.28 The increasing power of the Crown and the noblemen, the private ownership of shores, and exclusive fishing rights had been eroding public rights in water resources, contrary to the reasonable expectation of the people.29 As the Crown held the navigable waterways and lands, it had a duty to ensure that these resources could be shared by the public. The Magna Carta required King John (1166–1216) to allow the people to have rights to access fishing and hunting rights as common resources.30 Although the Magna Carta is not part of the laws of Hong Kong, its spirit nevertheless reflects the common law jurisprudence and has a profound influence on it.31 The central theme of the public trust doctrine is to manage natural resources through the legal system.32 Therefore, all Crown land is managed and looked after in trust for the public.33 As one scholar put it, “[t]his notion of government ownership of resources held in trust as a commons is a shared precept in all places where the Public Trust Doctrine persists”.34
For some centuries, very little litigation followed the Magna Carta because natural resources were still quite abundant.35 The public trust doctrine developed very gradually until the time of the Industrial Revolution in the 18th century.36 Thereafter, there was increasing litigation in England concerned with the ownership of seashores, beds of navigable rivers and public rights in waters.37
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This provided a platform for the development of the public trust doctrine.38 The English judiciary had been actively utilising the public interest protection in the Magna Carta for navigation.39 The underlying principle was that the King had limited ownership rights over his resources. Therefore, he could not pass good title to these resources to private owners if it was inconsistent with the public interest — for example, navigation. At common law, the public trust doctrine was developed from disputes arising over the ownership of tidal waters — ie the public right to navigate. The public always has the right of navigation above the tide and in tidal waters regardless of the ownership of the river beds.40 In a 1675 case, Attorney-General v Farmer,41 the Court of Exchequer held that the title of the Crown under the Royal Prerogative could not be passed in the absence of an express grant. In an 1811 case, Attorney-General v Parmenter, the Court of Exchequer said:42
In 1865, the House of Lords gave its approval to the concept of public trust in Gann v The Free Fishers of Whitstable.43 Their Lordships held that certain resources — for example, waterways — are common and the King could not enable the owner of a fishery to obstruct the passage of ships.44 The King could grant his private right to other people, but the public right held for his subjects could not be alienated.45 Legal title to water resources, as common resources, should be held by the Crown in trust for the benefit of its citizens.46 In Gann, the majority delivered their judgments in line with the Roman law doctrine cited by the appellants.47 Under Roman law, jus publicum is the public right to use and enjoy property that cannot be obstructed by nuisances or impeached by exactions.48 This is a dominant interest over property. The property may
44 Ibid, at 221–222.
48 Ibid, at 199.
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be a private man’s freehold, ie jus privatum, but it is charged with a public interest subject to that duty, and cannot be allowed to be used in such a way as to destroy the natural barrier against the sea, which cannot be prejudiced or damaged.49 Therefore, jus privatum is subservient to jus publicum, which is the inalienable interest of the Crown.50 In an 1880 case, Attorney-General v Tomline,51 the English Court of Appeal unanimously confirmed the concept of the public trust. In this case, Cotton LJ said:52
[T]he land of the Defendant, when vested in the Crown, was held by the Crown for the public purpose of protecting the land from the sea; the land could not be granted free and discharged from that duty, and the Defendant, or those through whom he claims, as they theoretically take from the Crown, must hold the land subject to that duty, and cannot be allowed to use the land in such a way as to destroy the natural barrier against the sea.
The application of the public trust doctrine would inevitably conflict with the preeminence of private property rights. The question is whether or not the public interest and social justice should prevail.
3. THE LIMIT OF PRIVATE PROPERTY RIGHTS IN HONG KONG
The essence of the public trust doctrine is that the public should have a lawful claim to the enjoyment of certain rights as connected to land — for example, air, soil and water — for the sustainability of human life, notwithstanding private ownership.53 The common law maxim that a person should use his own property so as not to injure others (sic utere tuo ut alienum non laedas) supports this view.54 In Hong Kong, there is practically no fee simple estate.55 The leasehold conditions of land granted by the executive government normally include terms which protect the environment.56 The contractual relationship
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between the executive government, as landlord, and the tenant is primarily a matter of private law. In matters relating to leasehold estate, it may seem that the executive government does not have any public law obligation as a private landlord. However, it still holds all land in trust for the public. The grantee of the leasehold estate cannot have a better title than the grantor (nemo dat qui non habet). Under the public trust doctrine, all property, including private property, is held subject to the paramount right of the state for the interest of the public.57 In other words, most private property rights are legally curtailed.
According to the public trust doctrine, the state has a duty of care to ensure that all natural resources are properly managed for the public good, including those residing inside private property. Although private property owners have from time immemorial enjoyed their proprietary rights over their property, these rights have always been subject to legal interference. A balance has to be struck between the rights of private property owners and the interests of the public. There is always a conflict between protecting a healthy environment and the preeminence of private property rights. The property right of private ownership in Hong Kong is protected by the Basic Law.58 This right is subject to the reasonable limits of the law. At common law, the preeminence of private property rights has been derogated by easements, nuisance, waste and the public trust doctrine. The public trust doctrine may be considered as a form of nuisance to protect public rights in a healthy environment.59 For example, public nuisance is a common law offence in which the damage or loss suffered by the public may arise from environmental misdeeds.
The public trust doctrine is founded on the basis that certain natural resources are common property. This inevitably encroaches on the rights of private property owners. The Basic Law provides that private property owners are entitled to receive fair compensation for lawful deprivation of their property.60 The power of eminent domain is limited by requiring that fair compensation be paid whether or not the owners agree. Justification for eminent domain is that the state should have the right and duty to protect and promote the interests and welfare of the public through the power to take over private property.61 This provision does not create new eminent domain power for the executive government of Hong Kong. One may say that the public trust doctrine
clauses” (ie trades that are offensive to neighbours — for example, leather tannery or fishmonger) but new Crown/government leases often use detailed user restrictions as a planning tool.
61 Harry Scheiber “Public Rights and the Rule of Law in American Legal History” (1984) 72 CLR 217 at 225.
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is the mirror of this provision as both restrict the power of the executive gov ernment to divert property.62 Both the public trust doctrine and this provision have “a strong sense of equity that condemns these uncompensated transfers as a genteel form of theft, regardless of whether the original holdings are public or private”.63 The limitation of governmental power “prevents the dissipation of valuable resources that are used to obtain or resist uncompensated transfers”.64
4. THE FIDUCIARY OBLIGATION OF THE STATE
The public trust doctrine may be defined as the holding of common property by the state in trust for the public, and a fiduciary duty should therefore be imposed.65 The rationale behind this doctrine is that some of these vital natural resources belong to the public and the state has the duty to hold them in trust for the public good. In Hong Kong, the Secretary for Justice has a positive duty to protect the public interest. The executive government has a public duty to preserve and protect all land in maintaining the public’s common heritage. The fundamental issue is whether or not a legal obligation can be imposed on the state as trustee at common law. In Hong Kong, all common law rules can be altered, repealed or modified by the Legislative Council.66 Therefore, the constitutional basis of this doctrine should be identified.
4.1 The State as Trustee
If public trust is a trust, then a fiduciary duty is imposed on the trustee, ie the state, of the trust. The application of the public trust doctrine could arguably be inconsistent with the doctrine of separation of powers because the judicial branch of the government should not interfere with the affairs of the executive branch of the government. In Kinloch v Secretary of State for India,67 the House of Lords held that the use of the express words “in trust” did not create a legally enforceable trust but rather a discharge of the duty arising from Crown prerogative.68 This case was followed by Tito v Waddell (No 2),69 where the
62 Epstein “The Public Trust Doctrine”, above n 5, at 426. 63 Ibid.
69 Tito v Waddell (No 2)  Ch 106.
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Court of Chancery looked at the entire instrument in determining whether there would be an enforceable trust.70 The Court made a distinction between a mere governmental obligation notwithstanding the use of a phrase such as “in trust for” and an equitable relationship constituting a cestui que trust (ie true trust or trust simpliciter).71 The former is called a trust in the higher sense (ie political trust) and the latter is called a trust in the lower sense.72 In Tito, it was held that there was a rebuttable presumption that the Crown was a trustee in the higher sense.73 The rationale behind this argument is that even though a true trust fails, a trust in the higher sense may still be imposed on the Crown under its governmental obligation.74 The courts took the view that there were many means to scrutinise the state in honouring its obligations, including political accountability.75 However, there should be checks and balances against the abuse of legislative and executive powers. As Professor Joseph Sax put it: “The ‘public trust’ has no life of its own and no intrinsic content. It is no more — and no less — than a name courts give to their concerns about insufficiencies of the democratic process.”76
Without a written constitution, the Westminster Parliament is omnipotent because it can retrospectively overrule the highest judicial organ.77 The government normally controls the Parliament. It was not until 2005 that the Constitutional Reform Act78 removed the Lord Chancellor, a cabinet minister, as the head of the judiciary.79 Therefore, it may not be unreasonable to regard Kinloch and Tito as displaying an attitude of traditional deference to authority.80 Any legislation enabling claims against the state is considered as abrogating the political trust doctrine.81 Nevertheless, the Basic Law provides that all residents of Hong Kong shall have the right to institute legal proceedings in the courts against acts of the executive government.82 In Authorson v Attorney
70 Ibid, at 215.
71 Ibid, at 215–216 and 233–234.
72 Ibid, at 215–216.
73 Ibid, at 217.
74 Ibid, at 217–218.
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General of Canada,83 the Court of Appeal for Ontario held that the Canadian federal government breached its fiduciary duty by owing disabled veterans decades of interest on their pension and benefit funds.84 The Court also said that, before a fiduciary obligation is imposed on the Crown, the political trust cases should be considered, because the Crown has many tasks to perform in the discharge of its legislative and executive responsibilities which are enforced in the political arena.85 Notwithstanding this pronouncement, the Court went on to say that the political trust cases “do not compel the conclusion that where the Crown administers funds in its possession pursuant to a statutory scheme that does not explicitly place a fiduciary duty on it, it can be sanctioned only in Parliament, but not in the courts”.86 Nevertheless, this decision was overruled by the Supreme Court of Canada on the technical ground that there was no due process right against duly enacted legislation unambiguously expropriating property interests.87 In the absence of a constitutional basis, the fiduciary duty of the Crown can be trumped by the legislature. As will be discussed, the Chinese Constitution and the Basic Law provide a constitutional home for the public trust doctrine.
The jurisprudence of Kinloch and Tito has limited influence in Canada. The courts would not rule out a true trust when the people have an inherent or vested right that is independent of the exercise of legislative or executive rights by the state. In Guerin v The Queen,88 the Supreme Court of Canada held that the Crown in right of Canada is a trustee in the lower sense for an Indian band. It cast doubt on the “cogency of the terminology of ‘higher’ and ‘lower’ trusts”.89 The Court distinguished this case from Kinloch and Tito because the Indian title had an independent existence from statutory provision.90 It said that the Crown owed a fiduciary duty because there was no equivalence to the nature of the aboriginal title. Guerin is a landmark case in developing the general fiduciary law in Canada.91 It extended the fiduciary obligations in relationships which were not traditionally recognised as such,92 and is an example of how the
90 Ibid, at 351–352, 372 and 378–379.
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Court applies ancient equitable principles to achieve justice in new situations.93 It held that:94
[T]he Indians’ interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown’s obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.
4.2 The Application of the Public Trust Doctrine in Constitutional Documents
If the people of Hong Kong have an inherent or vested right to the use and enjoyment of natural resources under common law or constitutional documents, then its executive government should owe them a duty in the lower sense. This gives rise to a true trust. The public trust doctrine takes for granted the existence of such inherent or vested rights at common law. However, a stronger case can be made if the inherent or vested right is constitutionally recognised. Upon the resumption of the exercise of sovereignty by China over Hong Kong, Crown privilege had to be transferred to the Central People’s Government as state privilege. Under the Basic Law, Hong Kong is just a local administrative region of China.95 The facts of Kinloch and Tito and other political trust cases are distinguishable from the circumstances in Hong Kong because the Chinese Constitution and the Basic Law have environmental protection provisions. Even in the absence of environmental protection legislation, a state should still have a legal obligation to manage natural resources properly for the welfare of the public. Professor Sax argues that when a state holds a resource which is available for the free use of the general public, a court would look with considerable scepticism upon any governmental conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the selfinterest of private parties.96 This view was accepted by the Supreme Court of India in MI Builders Pvt Ltd v Radhey Shyam Sahu.97
There are a number of provisions in the Chinese Constitution and the Basic Law supporting the contention that a trust in the lower sense is imposed on the executive government of Hong Kong to protect the environment.
93 Guerin v The Queen, above n 88, at 370. 94 Ibid, at 385.
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Article 7 of the Basic Law provides that the “land and natural resources within Hong Kong shall be State property”.98 The executive government “shall be responsible for their management, use and development and for their lease or grant to individuals, legal persons or organizations for use or development. The revenues derived therefrom shall be exclusively at the disposal of the government of the Region.” 99 The state owns all land in Hong Kong, whose executive government is empowered to exercise a high degree of autonomy over it under the Chinese Constitution.100 This provision limits the power of the executive government of Hong Kong over matters in land and natural resources because the land systems of Hong Kong and the rest of China will merge on 1 July 2047.101 As Hong Kong has no absolute property rights over land and resources, its powers of management, development and leasing over them are inevitably fettered. It does, however, have legislative power over land and natural resources for conservation purposes as it is responsible for their management, use and development. This clearly finds a constitutional home from which the public trust doctrine can operate in Hong Kong. A fortiori, there are environmental protection provisions at the national level.
The Basic Law, however, does not spell out the extent of management rights the executive government of Hong Kong may exercise over land and natural resources. It is nevertheless a piece of legislation enacted by the National People’s Congress under the Chinese Constitution, which also provides that “no law or administrative or local rules and regulations shall contravene the Constitution”.102 Therefore, the extent of the powers vested in the executive government of Hong Kong over land and natural resources has to be interpreted and defined in the context of the Chinese Constitution, which provides that mineral resources, waters and other natural resources are owned by the state.103 More importantly, it states that “[t]he State ensures the rational use of natural resources and protects rare animals and plants. The appropriation or damage of natural resources by any organization or individual by whatever means is prohibited.”104 The Chinese Constitution also requires all organisations and individuals who use land to make rational use of it.105 These provisions of the Chinese Constitution and Article 7 of the Basic Law clearly impose a legal obligation on the executive government of Hong Kong to hold all lands and
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natural resources in Hong Kong in trust for all Chinese people, including those living in Hong Kong, Macau and the mainland, with the state as the reversioner. This is a true trust rather than a political trust. The Central People’s Government would be reluctant to scrutinise the compliance of these provisions by the executive government of Hong Kong as Hong Kong is to exercise a high degree of autonomy.106
The Basic Law provides that just compensation should be paid for lawful deprivation of property.107 This would imply that it is not only private property rights which should be protected; the fractional share which each citizen holds in the trust property should also be protected.108 The rationale, according to a law and economics perspective, is that if property is transferred out of public trust for inadequate compensation, there would be losers and winners among the citizens.109 The losers would have been denied the equality provision of the Basic Law as they would be denied a fair share of the common resources.110 The Basic Law prohibits any unlawful deprivation of life and requires the executive government of Hong Kong to pay regard to the protection of the environment.111 A healthy environment is essential to protect the right to life of every citizen. There is a similar “right to life” provision under the Constitution of India.112 In MI Builders Pvt Ltd,113 the Supreme Court of India took the view that the public trust doctrine has grown from this provision. The questions are whether or not the executive government is legally obliged to protect the environment and whether or not the public can enforce such a right.114 The obligation imposed on the executive government to pay regard to the protection of the environment would be rendered redundant if the public was not entitled to be a claimant of this right. Therefore, the public trust doctrine should step in when the judiciary is concerned about an alleged abuse of governmental power.
4.3 Public Trust as a Legally Enforceable Trust
The foregoing analysis concludes that a legal obligation can be imposed on the executive government of Hong Kong as a trustee to hold property in trust for the people. The issue is whether or not certain forms of natural
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resources — for example, air, land and water — are in their original position held in common ownership.115 Otherwise, they would be subject to private ownership through individual appropriations.116 Theists believed that these resources were given by God to mankind to be held in common.117 Insofar as the property is held by the people in common in the original position, then a public trust would arise.118 In any event, whether or not a public trust is a true trust depends on whether the people have an inherent or vested interest in the property. A public trust is not created by any instrument or legislation. Rather, it arises from common law. Its ambit has to be declared by the courts in accordance with legal principles. The burden is to prove that it is a true trust. The issues are whether this doctrine is well entrenched in common law and is consistent with other common law doctrines. The recognition of the public trust doctrine and its extent in other common law jurisdictions is very much relevant to its recognition in Hong Kong. The Basic Law provides that the courts in Hong Kong may refer to precedents in other common law jurisdictions in adjudicating cases.119 Therefore, they are persuaded to follow the ratio decidendi of the precedents on public trust from other common law jurisdictions based on their authoritative rationale.
5. THE PUBLIC TRUST DOCTRINE IN COMMON LAW JURISDICTIONS
The public trust doctrine has not been expanded much in England other than in the traditional uses of navigation and fishery.120 Nevertheless, the doctrine has exerted more influence in other common law jurisdictions. As will be discussed, the doctrine has been recognised as part of the common law in a number of common law jurisdictions, including India, Kenya, Sri Lanka and the US. While the public trust doctrine has little role to play in contemporary Australian environmental protection,121 it was upheld by a lowlevel court, the New South Wales Land Appeal Court, in 1895.122 In South Africa, the National Water Act123 requires the national government to undertake the public trusteeship of
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the nation’s water resources. Nevertheless, most of the recent developments have taken place in the US and been expanded upon in India, Kenya and Sri Lanka.124 In Canada, it is only a matter of time before the public trust doctrine and its wider definition are recognised in light of a recent obiter dictum of its highest court.125 Although the public trust doctrine was inherited as part of the common law of individual states during the early statehood of the US, it was not until 1821 that it formally entered into American jurisprudence in Arnold v Mundy.126 In that case, the New Jersey State Court held that the state could not act inconsistently with “the principles of the law of nature and the constitution of a wellordered society [which] make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right”.127 In WJF Realty Corporation v State of New York, the Supreme Court of New York said:128
In enacting environmental mandates ... we are merely discharging our obligation under the societal contract between “Those who are dead, those who are living and those who are yet to be born”... . This generation’s duty has been discharged merely by setting aside this land for their use under the doctrine of the public trust.
In Martin v Waddell,129 the Supreme Court of the United States of America (US Supreme Court) held that there was “nothing in the authorities giving countenance to the idea that the King held the land covered by the waters of a navigable river as trustee or by a tenure different from that by which he held the dry land... . [I]f the King held such lands as trustee for the common benefit of all his subjects, and inalienable as private property, I am unable to discover on what ground the State of New Jersey can hold the land discharged of such trust and can assume to dispose of it to the private and exclusive use of individuals.”130 In Illinois Central Railroad Company v Illinois,131 the US Supreme Court held that the Illinois General Assembly (ie Illinois legislature) could not derogate the control and management of the harbour of the State of Illinois and vest its absolute interest in a private person.132 Such conveyance was violating the public trust over the lands held in trust by the state. Therefore, the State of Illinois and its legislature should exercise their law enforcement
124 See below, this part. 125 See below, this part.
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powers in accordance with the public trust doctrine.133 They could not abdicate their power to manage and control property in which the public has a vested interest.134 The Court held that:135
The right of a state to hold the soil under its navigable waters for all municipal purposes is exclusive. If it holds title to such lands upon trusts for public use, it may be that it has power to release to an individual or a corporation such title as it has, not thereby emancipating the trust estate from the execution of the trust with which it stands charged, but substituting its grantee as the trustee of this trust... . In so far as such grant is made in aid of navigation, as by way of granting flats, which are an obstacle to navigation, or of shore privileges, the exercise of which is a positive aid to navigation, the State acts clearly within its duty as trustee for the great public trust attaching to its title.
The preceding cases assert three main points: i) the state holds certain resources in trust for the good of the general public; ii) the public has some inherent or vested rights over these resources; and iii) the judiciary should preserve the inherent or vested rights of the public over the acts of elected officials in the name of democracy.136 An analysis of the leading public trust cases in the US suggested that the courts would be concerned with the advantages obtained by commercial interests from infringing public uses of land.137 However, a balance has to be struck between protecting the environment and public justification — for example, the costs.138 The public trust doctrine does not deny the rights of property developers to have their agricultural lands rezoned, provided they can address the longterm environmental concerns.
Professor Sax has argued that the public trust doctrine should apply whenever governmental regulation comes into question.139 The scope of this doctrine should be extended to cases involving air pollution, pesticides, rights of way for utilities and other activities where governmental permits are required.140 This doctrine may be applied to three types of governmental authority: i) the property subject to the trust must be held available for use by the general public;
ii) the property may not be sold, even for a just value; and iii) the property must
140 Ibid, at 556–557.
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be kept for particular types of uses.141 This broader definition of the public trust doctrine has been followed by the Supreme Court of India, the High Court of Kenya and the Supreme Court of Sri Lanka. In India, the courts have to balance the struggle between the public who wish to preserve the common expectations for a healthy environment and those in government who are under pressure to infringe on the common resources in meeting the changing needs of a complex society.142 The public should have a right to expect certain resources to be preserved in their natural form. The extent of environmental erosion has its limit. In MC Mehta v Kamal Nath, the Supreme Court of India held:143
Our legal system — based on English Common Law — includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources, which are in nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
In Waweru v Republic, the High Court of Kenya said that the state as trustee is under a fiduciary duty to deal with common natural resources as trust property in the interests of the public.144 It went on to assert that these resources include land resources, forests, wetlands and waterways.145 Accordingly, a balance has to be struck between economic benefit and a clean environment.146 The Supreme Court of Sri Lanka found the ambit of the public trust doctrine too narrow. In Bulankulama v Ministry of Industrial Development, it said: “The organs of State are guardians to whom the people have committed the care and preservation of the resources of the people.”147 It went on to say:148
The public trust doctrine ... since the decision in Illinois Central Railroad ... commencing with a recognition of public rights in navigation and fishing in and commerce over certain waters, has been extended in the United States on a case by case basis. Nevertheless ... it is comparatively restrictive in scope ... [the
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Court] should prefer to continue to look at our resources and the environment as our ancestors did.
In Canada, the public trust doctrine has gradually evolved. In an 1882 case, R v Robertson,149 the Supreme Court of Canada accepted the principle that the soil of the sea and its arms, estuaries and tidal waters, as common resources, should be held by the sovereign as a trustee for the public. Later, in an 1895 case, the Supreme Court of Canada held that the right of fishing is public.150 In 2004, there was a breakthrough for the public trust doctrine. In British Columbia v Canadian Forest Products Ltd,151 the Supreme Court of Canada held that public rights to natural resources were recognised and the provincial government was entitled to claim environmental loss on behalf of its citizens. It took the view that there are public rights in the environment that reside in the Crown as rooted in the common law.152 The Court cited academic articles on the public trust doctrine and referred to the law of nature in Roman law and Bracton’s treatise, which identified running water, air and the sea as common resources.153 It asserted that the ownership of this common property was vested in the Crown which had the authority to enforce public rights to use.154 The Court went on to discuss Illinois Central Railroad and other public trust cases arising in the US.155 More importantly, the Court gave the public trust its tentative recognition by stating that “[t]hese were all cases decided under the common law”.156 However, it did not feel it was the right moment to consider these “difficult issues” because they were not matters specifically before it.157 Nevertheless, the public trust doctrine was codified in the two northern frontier jurisdictions of Canada, Northwest Territories and Yukon, where there were minimal commercial interests in the legislatures. In Northwest Territories, legislation recognises the right to protect the environment and the public trust from released contaminants.158 In Yukon, legislation provides the people with the right to a healthful natural environment and a remedy adequate to protect the natural environment and the public trust.159
155 Ibid, at –.
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In Hong Kong, so far there is no public trust doctrine decision, other than a handful of cases on environmental protection dealing with statutory interpre tation. Although the Victoria Harbour reclamation cases were concerned with natural resources implicated in reclaiming 26 hectares from the harbour, they were judicial review proceedings and so did not raise the environmental protection provisions of the Chinese Constitution and the Basic Law and the fiduciary obligation of the executive government.160 The fundamental principle for the public trust doctrine in the constitutional documents of Hong Kong, identified earlier in this article, should have been referred to in these cases.161 The onus would be on the executive government to prove that the reclamation is for the paramount and reasonable needs of the public. A constitutional home for the public trust doctrine is clear and express.162 Moreover, the Basic Law provides that the laws previously in force during the colonial era, including the common law and rules of equity, shall be maintained except for any that contravene the Basic Law.163 The laws previously in force include common law and the rules of equity imported from England.164 Ostensibly, this includes the public trust doctrine, which is part of the English common law.
The public trust doctrine may well be foreign to the Hong Kong legal community. Nevertheless, it should be part of the laws of Hong Kong. As the courts of Hong Kong may refer to precedents of other common law jurisdic tions in adjudicating cases,165 the development of the public trust doctrine in Hong Kong depends on the attitude of the judiciary to accepting the relevant common law precedents from overseas. As an equitable doctrine, the public trust is flexible in fulfilling its duty. Historically, the public trust doctrine is an evolving concept relating to the ownership, protection and use of natural resources.166 In modern times, as discussed, this doctrine has been extended by the courts in various common law jurisdictions to hold that the state has a duty to promote and maintain a sound environment.167
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Recognition of the public trust doctrine in Hong Kong rests with the judiciary. The executive government is entrusted to provide a healthy environment in promoting a better life for its residents. It has a constitutional duty to carry out the environmental protection provisions of the Chinese Constitution and the Basic Law. These provisions can only be carried out if the executive government ensures that Hong Kong’s natural resources are well protected for present and future generations. The recognition of this doctrine is consistent with this high principle. Unlike the rules of common law, the rules of equity do not have to be established from time immemorial.168 As an equitable doctrine, the public trust has been established from time to time — altered, improved and refined.169 When equity was first developed, there were no fixed principles or doctrines. Therefore, the courts of equity were able to create rights and remedies afresh as justice required.170 However, a claim in equity must have a historical root in the practice and precedents of the courts of equity.171 While the fundamental doctrines of equity could hardly be altered,172 new rules of equity can always be evolved to meet the changing needs of society in fulfilling its public obligation. While maintaining the certainty of law, equitable doctrines that have been extended in recent years include the burden of restrictive covenants and the doctrine of estoppel.173 The public trust doctrine should not be an exception.
In 1970, Professor Sax called for application of the public trust doctrine to protect the environment by expanding its ambit from waterways to drylands, including general natural resources.174 Nowadays, the ambit of this doctrine has been extended from waterways to drylands by courts in various US jurisdictions, covering wildlife as well as parks, historical sites and recrea tional areas.175 In agrarian societies, water resources should be protected from exclusive private property rights because the livelihood of the entire nation relies upon them. The notion of common property is to ensure that certain resources can be enjoyed by the entire nation. Accordingly, these resources should not be depreciated. In contemporary societies, clean air and dry lands have been overexploited for commercialisation, industrialisation and
168 Re Hallett  UKLawRpCh 38; (1880) 13 Ch D 696 at 710.
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urbanisation. Therefore, this doctrine now also focuses on air and lands. Historically, the public trust doctrine has only addressed limited types of resources. In contemporary common law jurisprudence, it has been extended beyond that historical scope.176
The judiciary is the last resort in protecting public interests. It should uphold the rule of law by ensuring that there is equality before the law among the public as coowners of common resources and that the public rights of citizens to a healthy environment are protected. Otherwise, the bounty of nature can be granted exclusively to private use, depriving citizens of lower economic status of their fair share. However, the wider approach of the courts in asserting the public trust doctrine has not met without criticism.177 It has been argued that environmental issues are best addressed through democratic process.178 This is too simplistic. In Illinois Central Railroad,179 the Court was preventing the abuse of legislative power.180 In a wide range of situations, diffuse public interests have to be protected against wellorganised groups with clear and immediate goals.181 Even in fully developed democracies such as the US, there is always inequality of access to and influence over the executive government and legislature.182 Critics have pointed out that the courts should not interfere with environmental management, which can be highly complex.183 There is also a danger that private property rights are becoming uncertain as the courts expand the scope of public trust.184 The fallacy of these objections is that the role of the judiciary is to declare what the law is and not what the law should be. There is always a limit to exclusive enjoyment of private property rights. The courts cannot abdicate adjudication of a case because of its complexity. It is a matter of checks and balances among the three branches of government. In the age of environmental awakening, the courts should be entrusted with a leading role in balancing economic development, property rights and sound environmental management. Moreover, there is a reasonable expectation against destabilising changes in the environment, which is explicitly provided by the Chinese Constitution and the Basic Law. This would justify the judiciary
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in Hong Kong taking responsibility for the public trust doctrine under the provisions of the Basic Law.
In Hong Kong, social responsibilities for a healthy environment are not the top priority of the commercial world as all corporations have to maximise profits for their stakeholders. As a colonial legacy, there has always been a symbiotic relationship between the business elite and the executive government, especially their mutual concern about environmental activism. Under the present legislative framework, seats are reserved for the business, finance and real estate constituencies in the Legislative Council.185 The majority interest always gives way to the wellfinanced and vocal minority. The message of public choice theorists that legislative actions often conflict with the interests of the general public is loud and clear. Similarly, according to capture theory, with their huge financial resources, the regulated will eventually prevail.
Hong Kong is a classic example of the “tragedy of the commons” doctrine whereby natural resources are overexploited.186 This doctrine suggests that people have no incentive to preserve common resources because these limited resources are open to be exploited by others.187 Hong Kong’s air quality is a factor contributing to disproportionately avoidable fatalities because of inadequate air pollution regulations.188 Its fishery stocks have been declining because of government policy subsidising fish catching and marketing.189 Its harbour area has been substantially reduced because of land reclamation facilitating property development.190 The executive government has to bear the responsibility for licensing or engaging in these environmental degradations. As a coastal jurisdiction, the executive government is obliged to ensure the living resources in its exclusive economic zone are not endangered by overexploitation. Therefore, it should take proper conservation and management measures accordingly. It is now timely for the judiciary in Hong Kong to take a responsible role in protecting the right to a healthy environment by reviving the public trust doctrine.