1. APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA
SAFEGUARDING
NATURAL
RESOURCES:
AFINOWI OLUBUNMI
DEPARTMENT OF PRIVATE AND PROPERTY LAW
UNIVERSITY OF LAGOS

2. Clarification of terms
 Natural Resources; Natural Resources are materials occurring in Nature
that have a potential economic value or which provide for the sustenance
of life. The term also comprises environmental features that serve a
community’s well being or interests.
 Public Property; Public Property are properties jointly owned or belonging
to the generality of people in a State or Community. They are reserved
solely for public use and benefit. These properties in order to forestall
disorder or abuse are vested in the government for proper administration,
management and use for the common benefit of all.
 Public Rights; Public Rights are the interests of members of the public in
natural resources or public properties within their State or Community
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

3. An overview of the Public Trust
Doctrine
 The Public Trust Doctrine has its origin in
English and Roman Law. According to ancient
Roman law, certain things are by nature
common to all – the air, running water, the
sea, the sea-shore, the soil and the sand
beneath the sea, rivers and river banks.
These things were perceived as property of
the State held for the benefit of all. They were
known as the Res Commune
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

4.  The Public trust Doctrine in England was to the effect that the Crown
held certain Royal Forests and Pastures for the benefit of all
Englishmen for the conservation of certain birds and game and
sustenance of livestock. Though referred to as the Kings lands, all
citizens had to right to graze their livestock on these lands. The
Doctrine later advanced in England to check the excesses of the King
in apportioning all lands to himself at the expense of all.
 The Public trust Doctrine as it was later to be known has its origin in
England, it was used at a time to conserve wildlife, by vesting them in
the Crown to avoid abuse by all and sundry, later in order to tackle air
pollution, the air was vested in the government as guardian of “this
common, public necessity”.
 By 1865 judicial pronouncements had been made based on the
Public Trust Doctrine, in Gann v Free Fishers of Whitestable (11
English Reports ER 1305 (1865) HL) it was held that “ the bed of all
navigable waters…and all estuaries or arms of the sea, is by law
vested in the crown. But this ownership of the crown is for the benefit
of the subject and cannot be used in any manner so as to derogate
from, or interfere with the right…which belongs by law to the subject
of the realm”.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

5.  The PTD creates a Trust relationship between the
government and the citizenry, with the later being the
beneficiary and the former the Trustee.
 The subject matter of the Trust is the common
property or resources dedicated to the common use
and benefit of all either by nature as is the case with
rivers and riverbanks, seas and sea shores, water, air
etc, or by the general consensus of the populace
through Statutes as is the case with Forests,
Conserved Wildlife, Natural and Cultural resources,
etc.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

6. Scope of the Doctrine
 The application of the Public Trust Doctrine was initially limited to navigation and navigable
rights, fishing and commerce at coast lines and seashores.
 The Public trust doctrine has however over time been subjected to varied interpretations and
applications ranging from the conservation of wildlife to the prevention of waste or abuse of
public property.
 The Doctrine is also applicable to ensure sustainable development and preservation of
cultural heritage, and the preservation of the environment.
 The PTD has also been invoked to prevent the government from allowing inherently public
property pass into private hands, and where such properties are legally and rightfully passed
into private hands the doctrine has been used to ensure that such properties are used in a
way that will safeguard the interest of the generality.
 Further the Doctrine has been invoked to compel officials of government to carry out their
duties in relation to Public Properties.
 The Doctrine has also been applied to protect fragile and ecologically important lands like
fresh water, wetlands riparian forests and disappearing biodiversity.
 The Doctrine is of such a versatile nature that it spans property law, constitutional law,
environmental law, natural resources law, and public lands law.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

7. Evolution of the Public Trust
Doctrine
The main proponent in the re-emergence of the
Public Trust Doctrine is Sax. According to him:
 the Public Trust Doctrine is a useful vehicle of
judicial oversight to promote democratization
of legislative or administrative decision
making with respect to publicly owned
properties;
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

8. Evolution of the Public Trust
Doctrine
 According to Hu, the Public Trust Doctrine demonstrates
that the social responsibility model of stewardship
requires not only the government, but also the judiciary,
and even individuals as members of the public, to be the
stewards of public resources.
 According to Schyff, In order to be an effective tool in the
trade of environmental protection, the public trust doctrine
had to possess three characteristics. It had to create an
obligation that could be enforceable against the
government, it had to vest some concept of a legal right in
the general public, and it had to be capable of being
interpreted consistent with contemporary concerns for
environmental quality.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

9. The Public trust Doctrine at work
in Other Jurisdictions
 India :
 In M.C. Mehta v Kamal Nath & Others the Span Resort proposed to built a club
on the banks of a river encroaching land including substantial forest land which was
later regularized when Kamal Nath was the Minister. It was stated that earth movers
and bulldozers were used to turn the course of the river in an effort to create a new
channel by diverting the river flow, and save the club from future floods. The
Supreme Court held that the lease of the land to the club violated the public trust
doctrine.
 The Court observed that the Public Trust doctrine rested on the principle that certain
resources like air, sea, waters and the forests have such a great importance to the
public as a whole that it would be wholly unjustified to make them a subject of private
ownership.
 The Court further held that the doctrine was part of indian law having been inherited
from English Common law which prevented the aesthetic use and the pristine glory of
the natural resources, the environment from being eroded for private, commercial or
any other use unless the courts find it necessary in good faith and for the public good
to encroach upon such resources.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

10.  The Ugandan public trust doctrine first appeared in a 2004
decision of the High Court of Uganda at Kampala in
Advocates Coalition for Development and Environment
(ACODE) v. Attorney General. In this case, Kakira Sugar
Works had a longstanding lease to take firewood from the
Butamira Forest Reserve for its sugar refinery. Kakira applied
for a fifty year permit from the National Environmental
Management Authority to transform the forest reserve into
plantation lands. The government granted the permit, and
ACODE challenged the permit on public trust and statutory
grounds. The Court held that the management authority
breached its public trust duty under both the Ugandan
Constitution and statutes by not obtaining the consent of the
local community and not performing an environmental impact
assessment.
 The Public Trust Doctrine as applied in that case was founded
on the Constitutional provisions that the government shall hold
in trust for the people and protect natural lakes, rivers,
wetlands, forest reserves, game reserves and any land to be
reserved for ecological and tourist purposes for the common
good of all citizens.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

11.  In the Kenyan Experience in the case of
Waweru v. Republic which involved the
dumping of sewage in the Kiserian River, the
Court suo motu applied the Public Trust
Doctrine. While interpreting the constitutional
right to life to include the right to a clean and
healthy environment, it pointed out that both
rights are derived from Natural Law, and
linked to the PTD the essence of which is that
the State as a trustee is under a fiduciary duty
to deal with trust property being the common
natural resources in a manner that is in the
interest of the general public.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

12.  In Pakistan, the Doctrine was applied in the case of
Oposa v Factoran, in that case a group of school
children filed a class action challenging Timber licenses
issued by the Department of Environment and Natural
Resources.
 The Supreme Court held that the children had the right
to bring the action on behalf of themselves and future
generations concerning environmental and
intergenerational equity. The Court held that the
children had a right to a healthy environment because it
concerns self preservation and self perpetuation which
need not be written in the Constitution as they flow from
Natural Law which imposes on government a solemn
obligation to preserve a healthy ecology and protect
public health for the present and future generations,
lest they inherit nothing but a parched earth incapable
of sustaining life.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

13. Public Trusteeship under
Nigerian Legal System
 The 1999 Constitution of the Federal Republic of Nigeria vests all Natural resources
occurring on Nigerian soil, in Nigerian Territorial Waters, Exclusive Economic Zone
and Continental Shelf in the Federal Government. (Section 44(3));
 In addition to this, the 1999 Constitution in section 20 states that the government
undertakes to protect and improve the environment, safeguard the water, air and
land, forest and wild life of Nigeria.
 Further, the Constitution prohibits the exploitation of natural resources in any form
whatsoever other than the good of the community.
 The Exclusive Economic Zone and the Territorial Waters Act provide that the Federal
Government is to exercise sovereignty as well as exploit the resources in the EEZ
and the TW.
 The Land Use Act vests all land within a State in the Governor of the State who is to
manage and administer same for the common benefit of all Nigerians, to this end
each State has the duty of making laws to safeguard the land resources and the
general environment within the State as well as regulating Land Management
therein;
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

14. Factors affecting the Public
Interest Litigation in Nigeria
 The Procedural Issue of Locus Standi, the
Concept of locus standi is based on common law
and is to the effect that a party in order to sue
must have sufficient interest in the subject matter
of litigation.
 The Non- justiciability of Chapter 2 of the 1999
Constitution
 The loose concept of Government Trusteeship in
the Nigerian Legal System
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

15. A New Approach to the Public
Trust Doctrine in Nigeria
 As has been highlighted the Public Trust Doctrine is inherent in the Nigerian
Constitution and other Statutory provisions. All that is left practical application of
the Doctrine.
 The doctrine as glimpsed is one that is all encompassing and cuts across many
frontiers, it is a veritable legal tool to challenge the ineptitude of the legislature
and recklessness of the Executive as far as jointly held resources are
concerned.
 The Doctrine will aid the sustenance of environmental actions that would
hitherto have been dismissed on grounds of non-justicaibility.
 With the aid of the PTD, incessant waste and play of philanthropies with public
property and hiding under the cloak of Executive Immunity will cease as there is
no better time to hold the members of the government accountable for the
abuse of public trust than when they still occupy the office.
 Above all, the Doctrine will avail the opportunity to compel the government or its
officials (under the principle of public guardianship) carry out duties imposed on
them by Statute with respect to all natural, terrestrial, aquatic and cultural
resources within the Nigerian Nation.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

16. Public Trust Doctrine in Practice
 Compel the government to tackle issues of -
 Erosion in the South South
 Deforestation and Desertification in the North
 Flooding in the West due to blocked drainages and
constructions on waterways, sand filling of marshlands,
lakes and rivers
 Wreckages and carcasses of vessels on our coastline
 Gas Flaring in the Niger Delta
 River Dredging to forestall rivers overflowing their
banks.
 The list is endless!
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

17. A Closing Remark
 A photograph of a walled city in northern China. Four or five hundred years ago
this City had been the center of the populous and prosperous district. A district
whose mountains and ridges were covered with significant trees. Its streams
flowing without interruption and its crops in the valleys prospering. It was known
as one of the most prosperous provinces in China, both as a lumber exporting
center and as an agricultural community.
 Today the picture shows the walled town, almost as it stood 500 years ago.
There is not a human being within the walls. There are but few human beings in
the whole region. Rows upon rows of bare ridges and mountains stretch back
from the City without a vestige of tree life, without a vestige of flowing streams
and with the bare rocks reflecting the glare of the sun. Below in the plains the
little soil which remains is parched and unable to yield more than a tiny fraction
of its former crops. This is the best example I know of the liberty of the
individual without anything further.“ (Paul M. Bray, JD, Albany, New York
excerpt of a speech presented at the Council of Georgist Organizations
Conference on July 13, 2010 in Albany, New York. )
 If the government is not called to fulfill their role as a trustee of Public Property,
this will be the story in Nigeria and many places as we know them today will
only have existed “once upon a time”.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA

18. THANK YOU FOR
LISTENING.
APPLICATION OF THE PUBLIC TRUST
DOCTRINE IN NIGERIA