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 South
Africa’s Constitution, and its subsequent codification into the country’s environmental
biodiversity, protected area, water, minerals and heritage legislation, occurred to a large extent
without applause or fanfare. It is apparent that in the 20-odd years since the adoption of South
Africa’s Constitution, the existence and importance of the public trust doctrine within the
academic and legal fraternities, bureaucratic decision-making and the courts have largely been
overlooked. This observation evokes curiosity about the history and evolution of the doctrine
and its meaning and relevance in, at least, the conservation of biodiversity in a South African
context. It is concluded that the nature of the application of the public trust doctrine in South
Africa remains an enigma, and the development and refinement of this jurisprudence are
required. The variable and, in places, conflicting wording of the trust-related provisions in a
number of South Africa’s environmental statutes suggests that the doctrine and hence the
nature of its application was not fully understood by the drafters of the statutes or by the
legislature adopting those statutes into law. The public trust doctrine in South African
environmental law lies beyond the country’s Constitution, and appears to have multiple
bloodlines, which dispels the notion that South Africa hermetically imported the concept from
a single source. The interpretation and hence the nature of the application of the doctrine in
South Africa is likely to be influenced by the country’s heritage and hence is likely to vary
between the disciplines that constitute South Africa’s environmental law.