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The Public Trust is Slipping Away

A Happy New year to all.

When the holidays come along traditionalists, and there are many of us in this country, view it as a time to celebrate what good fortune we’ve had and the lives we’ve been able to carve out for ourselves. Needless to say, the degree to which people participate, and the extent of fortune, varies widely.

We also try to look forward to as good or better times in the New Year. For many people, thankfully, this means not more growth or consumption, but reform and improvement that serves us all collectively; better government, greater equality in the eyes of the law, and the protection or recovery of that which serves us all, the environment.

This leads me to talk about THE Public Trust. Not public trust, as in whether you or I trust government, corporations, the church, or hockey coaches. Not much common ground there.

THE Public Trust, however, refers to something far more critical to each and every one of us; our public land, clean water, clean air, ecologically functional forests and the complex of plants and animals we label biodiversity. The Public Trust Doctrine (PTD) traces its history to Roman times almost 2,000 years ago and is recognized as the oldest principle of environmental law, pre-existing all statutory environmental laws across the world. It’s been described as “the law’s DNA.”

It identifies present and future generations of citizens, you and I, as the beneficiaries of this trust. PTD imposes a range of obligations on trustees – legislatures and government ministries / agencies – including the duty to exercise uncompromised loyalty to present day public beneficiaries and recognizes Trustees legal obligation to protect trust assets to sustain future generations of citizen beneficiaries.

PTD speaks to one of the most essential purposes of government: protecting landscapes and ecological function for the continuing survival and welfare of all citizens. As a doctrine of common property law, PTD limits privatization, exclusive use, and degradation of trust assets.

The doctrine has often been characterized as an attribute of sovereignty that carries constitutional force.  And that is where it should be entrenched!

The Public Trust provides power to the people, and as a consequence has long been under siege by self-serving interests. It was discussed by citizens and some governments in Canada starting about the 1960s, and today over 100 legal scholars are working in support of legal action by young people to advance the doctrine in the U.S.

But Canadians have been lulled or intimidated to inaction by intense propaganda promoting development, consumption, extreme behaviour, and divisive legislation. We have long been coerced into avoiding debate and decision making about “unspeakable” issues that have subsequently divided society, issues like immigration fuelled population growth, the aboriginal industries attack on equality in access to law, and mass unrestrained consumption leading to climate super heating.

Too few Canadians have heeded Pope Francis’s warning to beware of “ecological sins against the common home!” Now that is advice that crosses religious barriers!

Governments across the land have worked, without public consent, and with no or little debate, to steal the public trust from “we the people,” holding it close to their vest, handing it out to political moneyed and corporate favourites and now doling it out in a destructive never-ending effort to appease the Aboriginal industry.

We might have avoided the looming collapse of society and environmental integrity, and some of the deep division in the country, had we enacted and defended the public trust

In B.C. the public trust doctrine is almost dismembered and buried, albeit, thankfully, not without loud opposition from some very active, and good, citizens. In its absence we have almost lost the battle over forest conservation, over transparency in government, and over equal access to government decision making. In the process governments have corrupted the meaning of citizenship and bred growing discontent.

We cannot achieve publicly, socially or scientifically accountable forest conservation and management unless provincial governments are legally obligated to abide by the Public Trust Doctrine and procedures enforcing it. And just as critically, we cannot give up on renewing and resurrecting THE Public Trust.

A citizen vision for the public trust must include permanent constitutional level protection of all land owned by the public (taxpayers and citizens), including at the municipal level, and including claw-back into public ownership of land which has been handed over to special interests in recent decades.

We cannot give up on re-establishing this foundation principle for a democratic society and nation; I urge all Canadians to join our common cause and not only demand, but take back, ownership of THE Public Trust!

That would be a Grand New Year!

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