The Role of the State as Custodian of the Environment

By Ian Cox

The South African Constitution obliges the state to ensure, through the implementation of reasonable legislative and other measures, that South Africans enjoy an environment that is not harmful to their health and well-being. To this end, the National Environmental Management Act, 1998 or NEMA states as a matter of principle that the environment "is held in public trust for the people".

But what does this public trust actually mean? Environmental authorities and some legal academics claim that this places the country's environmental resources in the state's custody in public trust.

I disagree.

While they would like this to be so, the claim does not bear close scrutiny. The statement that the environment is held in public trust for the people is not custodianship as we ordinarily understand the term.

It, in truth, does no more than emphasise the state's responsibility in section 24 of the Constitution to take reasonable legislative and other measures to give effect to our environmental rights.

It is easy to demonstrate that this must be so.

The common law roots of what is called the Doctrine of Public Trust has its modern origins in the Roman law rule that navigable rivers and the seashore are public property that vest in the state for the public benefit. This was to ensure that public access to these resources was protected from the exercise of state power.

This idea of specially protected public rights acquired a more general meaning under early English law, which distinguished between property that fell under the royal demesne and could thus be disposed of by the monarch at will and property that could not be disposed of because the monarch held it for the public benefit.

The Doctrine of Public Trust has undergone further development in South Africa, where mineral rights and water in private streams, which were once capable of private ownership, can no longer be privately owned and are now held by the state in public trust.

Some South African legal academics and environmental authorities have tried to extend the doctrine into the environmental space. This approach has been heavily criticised, not the least, because of the consequences it has for property rights and human rights.

The statement that the environment is held in public trust for the people is an example of this. However, the outcome of this attempt is more illusory than real.

No law in South Africa says that the state holds South Africa's natural resources in public trust. Academics and officials who claim this do so without legal authority. This is a case of trying to read into our law what you want to see rather than what is actually there.  

The real Doctrine of Public Trust is inextricably linked to ownership. The state holds things such as water or minerals that are not privately owned in public trust. Conversely, privately owned things cannot be held by the state in public trust.

Many natural resources, such as land, animals, and plants, are privately owned. Moreover, this ownership is constitutionally protected. The idea that the state can hold private property in public trust for the people is a legal absurdity as well as being morally indefensible.

It turns the environmental right from a human right into a destroyer of human rights. By appropriating all of South Africa's natural resources for the state, it subjects all South Africans to the baaskap of the state.

Fortunately, this is not what NEMA says. The environment is not defined in NEMA as a resource or even a collection of resources. It is the influence certain natural resources such as land, animals, and plants have on human health and well-being.

Section 24 of the Constitution creates a legal expectation that this process will not harm our health and well-being. The state is required to take reasonable legislative and other steps to ensure that this is so. NEMA refers to this when it says that the environment "is held in public trust for the people".

This approach to the meaning of public trust as it applies in NEMA is compatible with how section 3 of the National Environmental Management Biodiversity Act, 2004 or NEMBA, deals with the state's so-called "trusteeship of biological diversity". That section does not make the state the custodian of biological diversity.

It instead speaks to the process I have referred to above, saying that: "In fulfilling the rights contained in section 24 of the Constitution, the state through its organs that implement legislation applicable to biodiversity, must manage, conserve and sustain South Africa's biodiversity and its components and genetic resources; and implement this Act to achieve the progressive realisation of those rights."

It is this obligation that the state holds in public trust both in regards to biodiversity and in relation to the environment as it is defined in law.

Officials and legal academics who claim that the Public Trust Doctrine places South Africa's natural resources under the custodianship of the state are trying to build a bridge too far.

(Ian Cox is an attorney practising in Durban, South Africa. He earns his living as a commercial lawyer but, in his free time, works to defend and uphold the Constitution in the environmental space. He has also been involved in defending initiatives to allow poor communities greater access to South Africa’s freshwater fishing resources.)