Mary Christina Wood

I continue to find inspiration in the writings of several American and British lawyers (mostly women) who are seeking to further apply the ancient public trust doctrine to environmental law. I have long held an interest in this doctrine whereby the Crown or state holds certain property or natural resource in trust for the benefit of their citizens. It has been widely used in the USA, but rarely in Australia.

One of the most recent publications is by Mary Christina Wood of the University of Oregon in a book entitled Nature’s Trust: Environmental Law for a New Ecological Age (2014, Cambridge University Press). She is critical of current regulatory systems and argues that a “major source of administrative dysfunction arises from the vast discretion environmental agencies enjoy-and the way they abuse it to serve private, corporate and bureaucratic interests”.

Much of what she writes about applies to governments in most western countries. She proposes a new legal framework that would define and carry out government’s ecological obligations using the public trust doctrine (PTD) to guide the protection of land, water, air and wildlife resources.

To her and many others who have researched the history and application of PTD, there is considerable scope for its reinvigoration. She writes, “Public trust law demands that government act as a trustee in controlling and managing natural assets…[and] must promote the interests of citizen beneficiaries and ensure the sustained resource abundance necessary for society’s endurance”.

In principle, these thoughts are not new to us; think ESD! But her argument is for governments to change environmental law to place strict legal obligations upon itself. This would challenge the position in much of our current planning and environmental law that such issues as she feels are fundamental to our future are not just left as “matters for consideration”.

Politically the wholesale introduction of what she calls “nature’s trust paradigm” would prove very difficult to introduce into state or federal law in Australia. However, there is scope in coastal areas.

For areas such as beaches where the public believe they have a right of access and use, it should be possible to see government’s acting as trustees on behalf of its citizens exercising its powers to step in and protect the public property and never allocating rights to others to destroy or damage what people legitimately consider to be theirs now and into the future.