Getting to grips with the public trust doctrine in biodiversity conservation: A brief overview

Abstract

The explicit incorporation of the public trust doctrine into South Africa’s Bill of Rights in SouthAfrica’s Constitution, and its subsequent codification into the country’s environmentalbiodiversity, protected area, water, minerals and heritage legislation, occurred to a large extentwithout applause or fanfare. It is apparent that in the 20-odd years since the adoption of SouthAfrica’s Constitution, the existence and importance of the public trust doctrine within theacademic and legal fraternities, bureaucratic decision-making and the courts have largely beenoverlooked. This observation evokes curiosity about the history and evolution of the doctrineand its meaning and relevance in, at least, the conservation of biodiversity in a South Africancontext. It is concluded that the nature of the application of the public trust doctrine in SouthAfrica remains an enigma, and the development and refinement of this jurisprudence arerequired. The variable and, in places, conflicting wording of the trust-related provisions in anumber of South Africa’s environmental statutes suggests that the doctrine and hence thenature of its application was not fully understood by the drafters of the statutes or by thelegislature adopting those statutes into law. The public trust doctrine in South Africanenvironmental law lies beyond the country’s Constitution, and appears to have multiplebloodlines, which dispels the notion that South Africa hermetically imported the concept froma single source. The interpretation and hence the nature of the application of the doctrine inSouth Africa is likely to be influenced by the country’s heritage and hence is likely to varybetween the disciplines that constitute South Africa’s environmental law.