Public Trust Ireland (PTI)
www.pubictrust.ie
17 November 2014
Dear Minister White,
I am writing to you on behalf of Public Trust Ireland (PTI), in relation our proposals
for a referendum on the right to natural resources, including water, and the Public
Trust Doctrine, which would impose a duty of trusteeship on the State in relation to
natural resources.
Public Trust Ireland (PTI) is an academically based, independent campaign that was
founded in 2013 during the public consultation for the Convention on the
Constitution. A submission was made to the Convention, calling for amendment of
Articles 10 and 45 which would reaffirm that ownership of public natural resources
rests with the people of Ireland, as a fundamental right, and that the State would act as
a trustee on their behalf.
Proposed changes to the Constitution include recognition that the Right to Natural
Resources is:
1. an indefeasible and indivisible, fundamental human right;
2. an essential attribute of the sovereignty and right to self-determination of the
Irish people, who own Ireland's natural resources;
3. contained in, and essential to the fulfillment the International Covenant on
Economic Social and Cultural Rights (ICESCR)
4. contained in, and essential to the Right to Sustainable Development;
5. contained in, and essential to the beneficial rights of the public under the
Public Trust Doctrine (PTD), which holds the State to the duty of trustee of
public natural resources;
As a law lecturer, I recently gave a paper on these issues at the 3rd Yale/UNITAR
Conference on Environmental Governance and Democracy: Human Rights,
Environmental Sustainability, Post-2015 Development, and the Future Climate
Regime, held at Yale University, 5-7 September 2014. The title of my paper was
"A Constitutional Equation for Sustainable Development; Constitutionalising
Economic, Social and Natural Resource Rights, With the Public Trust Doctrine, in
Ireland."
I have also written about these issues in the 2014 book, Own Our Oil: the Fight for
Irish Economic Freedom, edited by Eddie Hobbs. chapter was entitled, "Resource
Nationalism and the Public Trust Doctrine: A Constitutional Solution to Ireland's
Inequitable Oil and Gas Regime." The chapter outlined the history of the Public Trust
Doctrine, and showed how Ireland is out of step with the international trend of
'resource nationalism' which is seeing Governments reclaim ownership and a greater
share of profits for natural resources from multinational corporations, due to national
public demands. Eddie Hobbs quoted from the chapter in his column in the Sunday
Business Post, on 11 November 2014:
"The fundamental issue is Article 10 of the 1937 Constitution which alienates
the Irish people from their natural resources and places ownership in the hands
of the state. What is needed is a constitutional amendment that embeds public
ownership of natural resources and that no longer prevents citizens from
taking court action when the state, acting as trustee, behaves against the
interests of the people.
The Chief Justice of the New Jersey Supreme Court, Andrew Kirkpatrick,
summed it up as a basic human right in 1821: “The sovereign power itself,
therefore, cannot, consistently with the principles of the law of nature and the
constitution of a well ordered society, make an absolute grant of the waters of
the state, divesting all the citizens of their common right. It would be a
grievance which never could be long bourne by a free people.” Precisely."
I read with interest your comments in the Sunday Independent (9/11/14) regarding the
possibility of a referendum on the right to water:
Speaking to RTE’s This Week in Politics, Minister White said a referendum is
a 'reasonable suggestion' but he's not sure if it would work. "[A referendum] is
a reasonable suggestion, but I think we need to do a lot more work on it," he
said. “I think we’ve had a bad experience in this country in terms of putting
stuff into the Constitution that we thought meant one thing and it turns out it
meant something else. “In recent days, some people have been saying, ‘No,
we won’t put Irish Water into the Constitution, we’ll just put ‘water’ as a
resource into the Constitution’. “It’s not really clear to me exactly how we
would achieve that," he continued. “I think it’s well-intentioned what the
proposal is, but if you’re to have a referendum to secure water, would you
then want to secure other important public bodies like ESB, Coillte, all of
these bodies that there’s controversy about as to whether they should be in the
private or the public sector.”
I would like to welcome your comments, as they are thoughtful, considered, and
reasonable, leaving open the possibility of a referendum, and acknowledging the
importance and complexity of the constitutional issues involved. These issues not just
central to the issue of potential privatization of Irish Water, but also to the decision
you and the Government are currently making with regards recommendations of the
Convention on the Constitution. A decision must be made as to whether or not rights
to natural resources will be included in a referendum on Economic, Social and
Cultural (ESC) rights.
Convention on the Constitution | Economic, Social and Cultural Rights
In February, 2014, 85% of the members of the Convention on the Constitution voted
“to afford greater constitutional protection to Economic, Social and Cultural (ESC)
rights,” and recommended that the Oireachtas hold a referendum on the matter. In
voting to strengthen ESC rights the Convention on the Constitution, also voted to
highlight certain rights which should be expressly stated in the Constitution. They
voted in favour of: housing (84%); social security (78%); essential health care (87%);
rights of people with disabilities (90%); linguistic and cultural rights (75%); and,
rights covered in the International Covenant on ESC Rights (ICESCR) (80%).
PTI welcomed this recommendation, since we had made a submission to the
Convention on behalf of PTI, showing that rights to natural resources are included
ESC rights, and calling for a referendum on the right to natural resources and the
Public Trust Doctrine, which recognizes the State as having duties of trusteeship with
regards to natural resources.
Both ICESCR and the International Covenant on Civil and Political Rights
(ICCPR)(1966), have identical provisions relating to natural resources at the
forefront, in Articles 1(2):
“All peoples may, for their own ends, freely dispose of their natural wealth
and resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.”
This provision flows from Article 10 of the Universal Declaration on Human Rights
(UDHR) which states,
“Everyone, as a member of society, has the right to social security and is
entitled to realization, through national effort and international co-operation
and in accordance with the organization and resources of each State, of the
economic, social and cultural rights indispensable for his dignity and the free
development of his personality.”
This means that natural resource rights are and integral part of ESC rights. The
resources themselves are acknowledged to belong to the people, not the State, and the
level of protection of all other ESC rights is dependent on the availability of the
benefits derived from those resources.
UN Declaration on Permanent Sovereignty
In terms of international law, absolute sovereignty or ownership of the nations
natural resources by the State does not legally exist. It contradicts the 1962 UN
Declaration on Permanent Sovereignty over Natural Resources, in international
law, which declared:
The right of peoples and nations to permanent sovereignty over their
natural wealth and resources must be exercised in the interest of their
national development and of the well-being of the people of the State
concerned.
Public Trust Ireland (PTI) is calling for a referendum on an amendment to Article
10, which will confirm sovereignty and ownership over natural resources by the
people of Ireland, rather than the State, and which will give citizens the power to
challenge Government decisions, and legislation, regarding public natural
resources.
UN Resolution 64/292 | The human right to water
The PTI submission to the Convention on the Constitution also showed that natural
resource rights are essential for both fulfillment of ESC rights under the Constitution
of Ireland, and the fulfillment of Ireland’s obligations under the ICESCR). This
particularly true for the right to water. Water was declared a human right by the
United Nations (UN) General Assembly in 2010, in Resolution 64/292, despite
Ireland’s abstention from the vote. The Resolution explicitly 'recognised' the right to
safe and clean drinking water and sanitation "as a human right that is essential for the
full enjoyment of life and all human rights." The Resolution ‘recalls’, “general
comment No. 15 (2002) of the Committee on Economic, Social and Cultural Rights,
on the right to water (articles 11 and 12 of the International Covenant on Economic,
Social and Cultural Rights).”
General Comment 15 provides guidelines for the interpretation of the right to water,
under ICESCR, framing it within two articles, Article 11, the right to an adequate
standard of living, and Article 12, the right to the highest attainable standard of health.
The Comment clearly outlines States parties obligations to the right and defines what
actions would constitute as a violation. Article I.1 states:
“Water is a limited natural resource and a public good fundamental for life and
health. The human right to water is indispensable for leading a life in human
dignity. It is a prerequisite for the realization of other human rights.”
Article 1.2 of General Comment 15 states:
“The human right to water entitles everyone to sufficient, safe, acceptable,
physically accessible and affordable water for personal and domestic uses.”
Article 1.3 of General Comment 15 addresses the source of the right to water as being
Article 11 and Article 12 of ICESCR. It also states that, “The right should also be
seen in conjunction with other rights enshrined in the International Bill of Human
Rights, foremost amongst them the right to life and human dignity.” Article 1.3 states,
in relevant part:
Article 11, paragraph 1, of the Covenant specifies a number of rights
emanating from, and indispensable for, the realization of the right to an
adequate standard of living “including adequate food, clothing and housing”.
The use of the word “including” indicates that this catalogue of rights was not
intended to be exhaustive. The right to water clearly falls within the category
of guarantees essential for securing an adequate standard of living, particularly
since it is one of the most fundamental conditions for survival. Moreover, the
Committee has previously recognized that water is a human right contained in
article 11, paragraph 1, (see General Comment No. 6 (1995)).
The right to water is also inextricably related to the right to the highest
attainable standard of health (art. 12, para. 1) and the rights to adequate
housing and adequate food (art. 11, para. 1).
It is vital that Irish law reflects, and implements international law, both in terms of
implementing the human right to water, and the strengthening ESC rights, in order to
meet the requirements of ICESCR.
Article 11 | Constitution of the Irish Free State
ESC Rights are also found in Article 45 of Bunreacht na hÉireann, which is partly
derived from of the bill of rights, entitled Fundamental Rights, in the 1922 Free State
Constitution, Articles 1-11. Article 11 contained a fundamental, inalienable and
indefeasible right to natural resources. It included a ban on alienation of public natural
resources, and stated that natural resources “shall not, nor shall any part thereof, be
alienated, but may in the public interest be from time to time granted by way of lease
or licence to be worked or enjoyed under the authority and subject to the control of
the Oireachtas…”
The Hon. Hugh Kennedy, Chief Justice of the Supreme Court, who had served a
member of the Constitution Committee, wrote in the 1928 American Bar Association
Journal, “History made it inevitable that in the forefront of the instrument, those
doctrines which have come to be accepted as the great fundamental rights and
liberties of the citizen should be stated as fundamental principles of this constitution.”
He said, “all these principles”, including “the national ownership of the natural
resources of the country…receive guarantees as constitutional rights.” W.P.M.
Kennedy, former Dean of University of Toronto law School, writing in the North
American Review in 1923, said, “…the Constitution contains clauses in which its
creators lay down their fundamental rights which are indefeasible” and which “the
people reserve to themselves from the processes of ordinary legislation; the
inalienable possession of their natural resources…”
The drafting history shows that Article 11 was based on the Democratic Programme,
adopted by the First Dáil, in 1919, which stated, in relevant part:
We declare in the words of the Irish Republican Proclamation the right of the
people of Ireland to the ownership of Ireland…and we declare that the nation's
sovereignty extends…to all its material possessions, the Nation's soil and all
its resources, all the wealth and all the wealth-producing processes within the
Nation, and with him we reaffirm that all right to private property must be
subordinated to the public right and welfare… It shall be our duty to promote
the development of the Nation’s resources, to increase the productivity of its
soil, to exploit its mineral deposits, peat bogs, and fisheries, its waterways and
harbours, in the interests and for the benefit of the Irish people.
R.N. Tweedy succinctly described the link between natural resources and other social
and economic rights, in his analysis of Article 11 of the Free State Constitution,
saying,
“This Article in the Constitution is very important, because the natural
resources of Ireland are so great that every citizen can live in decency and
comfort if the State directs their use properly.”
It is time that the explicit promises made in both the Free State and 1937 Constitution
are realized. Only by granting justiciable rights, and enforcing a fiduciary duty on the
State, in relation to public natural resources, can that promise be fulfilled.
The Public Trust Doctrine | Article 45 & Article 10
The ‘public trust doctrine’ is an English common law principle that posits that the
sovereign or state is under a duty act as a trustee over certain natural resources, and to
protect and manage them on behalf of the people. It has its roots in the Roman law of
Justinian, and early English law; Chapter 16 of Magna Charta. In modern times it
came to the fore in the United States, in a series of U.S. Supreme Court and State
court decisions, beginning with cases involving ‘the oyster wars’. Many of these
decisions actually rely on early Irish cases, such as the Case of the Royal Fishery of
the Banne (1610), and Murphy v Ryan, (1868) another fisheries case. Ironically, those
same cases are used in Ireland to deny the public rights to fishing and natural
resources, such as in Inland Fisheries Ireland v. Ó Baoill [2012] IEHC 550 (High
Court, Laffoy J).
Since the 1970s, the PTD has spread from the U.S. to ten other countries, including
Canada, India, Pakistan, South Africa, and Australia, which are all common law
countries like Ireland. It is also being used in climate change litigation in both the
U.S. and Europe.
The PTD imposes a fiduciary standard of care on the State, which is the highest
standard of care, in relation to natural resources. This means that the State is under an
active duty of care to manage the trust property in the public interest only. It means
that the public can go to court and challenge decisions that are made by the State, in
relation to public natural resources. It also includes rights to information, the right to
an accounting, and forbids any ‘self-dealing’ on the part of the State, or its
representatives.
This ‘beneficial’ ownership by the people, as opposed to the legal ownership of the
State, is what lies at the heart of the PTD, and indeed the right to natural resources
itself. With the many challenges facing natural resources, and indeed public finances,
it is vital that natural resources are subject to the highest standards of care and
scrutiny, and it is only by making the natural resources in Article 45 justiciable, along
with the other ESC rights, that this can be achieved.
Amendment of Article 10 & Article 45
As you pointed out in your interview, it is necessary to consider rights to natural
resources, in general, when considering constitutionalising the right to water. Oil and
gas, minerals, state forests, fisheries, air and other natural resources and State assets
must also be considered. Article 10 of Bunreacht na hEireann currently regulates the
ownership and management of natural resources: “All natural resources, including the
air and all forms of potential energy…belong to the State.”
However, the State does not have complete ownership of natural resources, since
Article 45(2)(ii) states:
“The State shall, in particular, direct its policy towards securing: That the
ownership and control of the material resources of the community may be so
distributed amongst private individuals and the various classes as best to
subserve the common good.”
The term “material resources of the community” includes natural resources, and acts
as a guide to the Oireachtas in terms of legislation and policy-making. However, since
Article 45 is entitled Directive Principles of Social Policy, and is nonjusticiable by its
own terms, citizens are left with no means of exercising their internationally
recognized human rights to natural resources.
The wording of Article 45, and its relationship to Article 10, indicates that the
Constitution already contains the PTD, in the form of the right to natural resources.
The fact that Article 45 places a restriction on the State, requiring it to consider the
public interest, in decision-making with regards to natural resources, means that the
ownership of natural resources by the State, in Article 10, is not absolute ownership,
but is subject to the beneficial rights of ownership in the Irish people.
Article 10 was also contradicted by the Terms of Reference (TOR) issued by the
Department of Communications, Energy and Natural Resources (DCENR) on 24
September 2013, for a public procurement process, seeking the provision of expert
advice on the fitness-for-purpose of the fiscal regime for oil and gas. The TOR stated:
“Having regard to the fact that Ireland’s indigenous oil and gas resources
belong to the people and to the policy goal of maximising the benefits to the
State, from exploration for and extraction of those resources, the Minister for
Communications, Energy and Natural Resources seeks expert advice…”
(emphasis added)
Former Minister for Communications, Energy and Natural Resources, Pat Rabbitte
TD, addressing the Institute of International and European Affairs on The Future of
Energy Policy in Ireland and Europe, on Friday 24 February 2012, affirmed that while
Article 10 appears to grant total State ownership, that ownership is limited by other
public and private rights:
State participation need not be active: it can instead consist of profit-sharing,
perhaps through our taxation system. The starting point must be the
Constitution, Article 10.1 of which states that all natural resources, “including
the air and all forms of potential energy”, belong to the State. This legal claim
is stated in the text to be subject to any private interests that are for the time
being lawfully vested in any person or body. But the wind, of course, is not
owned by any private interests. It belongs therefore to the State and its
exploitation as a natural resource must be on behalf of the people and driven
by the public interest. (emphasis added).
Article 10 does not place any such restrictions on the ability of the State to alienate
public natural resources, and Article 45 is nonjusticiable. Only Article 6.1 places
restrictions on the State power, generally:
All powers of government, legislative, executive and judicial, derive, under
God, from the people, whose right it is to designate the rulers of the State and,
in final appeal, to decide all questions of national policy, according to the
requirements of the common good.
This means that all powers of ownership and control over public natural resources are
derived from the people, who are sovereign, under Article 1, which states:
The Irish nation hereby affirms its inalienable, indefeasible, and sovereign
right to choose its own form of Government, to determine its relations with
other nations, and to develop its life, political, economic and cultural, in
accordance with its own genius and traditions.
Article 10 has never been successfully used by a citizen to challenge a decision by the
State to alienate natural resources. Instead, Article 10 has been used by the Courts to
effectively grant complete ownership of natural resources to the State.
Drafting the Constitutional Amendment | Wording for the Referendum
In terms of drafting the ESC rights amendment, special care must be taken to ensure
that public rights and State duties in relation to natural resources are included, and
clearly defined, so as to make them justiciable. The Convention on the Constitution
voted for Option 3: “Insert provision that the State shall progressively realise ESC
rights, subject to maximum available resources and that this duty is cognisable by the
Courts.”
The enjoyment of all ESC rights depends on the justiciability of natural resource
rights, since ‘progressive delivery’ of those rights is subject to limitation by the state,
under the guise of the “maximum available resources” provisions found in ESC
rights protections such as ICESCR. Traditionally, this language provides the ‘wiggle
room’, which permits states to argue that they simply did not have enough resources
to deliver the required ESC rights.
One possible model for such an amendment could be Article 27 of the Constitution of
Pennsylvania, which states:
Pennsylvania’s public natural resources are the common property of
all the people, including generations yet to come. As trustee of these
resources, the Commonwealth shall conserve and maintain them for
the benefit of all the people.
Another model can be the Constitution of the Irish Free State, and its drafting
history. Art. 81.2, First Draft, Constitution of the Irish Free State, 1922 said:
"Dáil Éireann shall regulate and control natural resources as trustees of the
people of Ireland."
Request for Committee Hearings
Clearly, Irish law had not kept pace with international law, in terms of ESC rights and
natural resources. If the Government decides to hold a referendum on the
strengthening of ESC rights, which it should, it is necessary to include the right to
water in that proposed amendment, along with rights to other natural resources.
Considering the complexity of the issues involved in drafting a constitutional
amendment, which you yourself have acknowledged, PTI is requesting that the
matter is brought before two Committees, in order to explore the options, and to
give the public and recognized experts an opportunity to consider the matter
further, before it is voted on by members of the Oireachtas.
We ask that you refer this matter to both the Committee on the Environment,
Culture and the Gaeltacht and the Select sub-Committee on Communications,
Energy and Natural Resources.
Kind regards,
Vincent Salafia,