Journal of Environmental Law and Practice
Published On: April 1st, 2012
Jackson, S., Brandes, O.M., & Christensen, R. (2012). Lessons from an ancient concept: How the Public Trust Doctrine will meet obligations to protect the environment and the public interest in Canadian water management and governance in the 21st century. Journal of Environmental Law and Practice, 23(2), 175–199.
The Public trust doctrine is a longstanding legal principle that has the poten- tial to provide protection to ecological values, ensure water for future needs, and protect public uses and interests. While application of the principle is widespread in the U.S., it has yet to be fully articulated in Canada. This paper will outline the opportunity to enshrine the Public trust doctrine into Canadian water law by high- lighting the foundational aspects required in any legal framework. It will highlight key cases in which courts in other common law jurisdictions have applied Public Trust principles, and discuss the interplay between the development of this princi- ple at common law and in legislation. It will provide an overview of the core legal principles of the Public Trust that already exist in Canada’s common law tradition, and discuss the potential to develop these principles in the context of modern water governance using the current water law reform process in British Columbia to il- lustrate the powerful potential of this ancient concept to address modern fresh- water challenges.
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Sarah Jackson Oliver M. Brandes Randy Christensen