1. INTRODUCTORY MATTERS (2) By RICHMOND OSEI-HWERE FACULTY OF LAW, KNUST

2.  The Public Trust Doctrine  Taking of Property

3.  Black’s Law dictionary defines the Public Trust Doctrine as: “The principle that navigable waters are preserved for the public use, and that the state is responsible for protecting the public’s right to the use.”

4.  Universally, certain natural resources are imbued with a sense of permanent public ownership.  Examples – ocean, certain water bodies, shorelines, submerged lands and the air.  Permanent public ownership reflects their immense importance to individuals and society at large.

5.  Most scholars trace it back to Roman and English law.  Held that property rights in the rivers, seas and seashore were to be preserved for the benefit of the public for navigation, fishing or other purposes.

6. Roman Civil Law– The air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. Institutes of Justinian – 534 CE  English Common Law – The sovereign held the tide and submerged lands, not in a proprietary capacity, but as trustee of a public trust for the benefit of the people of the realm. Magna Carta – 1215

7.  Such resources could never be granted or sold into private ownership.  In the US, the original colonies succeeded to the English crown the ownership of submerged lands under tidal waters.  After independence, the newly formed state governments held title to such lands.

8.  The US Supreme Court held that states later admitted to the Union obtained the same ownership rights to submerged lands under tidal waters as the original thirteen states under the “equal footing” doctrine. See Pollard v. Hagan, 44 U.S. (3 How.) 212, 229 (1845)

9.  State ownership came with limitation  The US SC confirmed in 1892 in the significant case of Illinois Central Railroad Co. v. Illinois, that the historic public trust doctrine was an independent limitation on the state’s power to sell or otherwise relinquish control over submerged lands that instead must always be held “in trust” for the public.

10.  Traditionally Public Trust uses were limited to: Water-related Commerce Navigation Fishing

11.  Facilities for the Promotion of Trust Uses Examples of these Public Trust consistent uses include: – Harbours – Ports – Marinas

12.  Uses that directly promote, support, or accommodate Public Trust uses and public access. Commercial facilities: – Warehouses Oakland v. Williams (1929) 206 Cal. 315 – Container cargo storage – Convention and Trade Facilities Haggerty v. Oakland (1958) 161 Cal.App.2d 407 Facilities to serve waterfront visitors: – Hotels – Restaurants – Parking lots Martin v. Smith (1960) 184 Cal.App.2d 571

13.  Uses that are generally not permitted on Public Trust lands are those that: – Are not water-dependant or water-related – Do not serve a state-wide public purpose – Can be located on non waterfront property – Examples: Residential General Commercial Non-visitor Serving Retail Public Schools, Hospitals,etc. Mallon v. City of Long Beach (1955) 44 Cal.2d 199

14.  The Public Trust Doctrine became part of the English Common Law and the courts in the United States have applied the doctrine.  Some State Constitutions incorporate the Doctrine like the Hawaiian Constitution which declares that, "All public natural resources are held in trust by the State for the benefit of the People."

15.  It is a vehicle for public access to water, beaches, or fishing in a world otherwise dominated by private ownership.  It is a check on government attempts to give away or sell such resources for short-term economic gain.

16.  It is a mechanism for judicial taking of private property.  It has been lauded as a doctrine full of potential for environmental and natural resources protection.

17.  It encourages judicial takings of private property without just compensation.  It places emphasis on the common law and the judiciary rather than legislative efforts.

18.  Discussion will focus on:  Meaning of taking of property.  Categories of takings.  Requirements for a lawful taking  Tackling unlawful takings

19.  Refers to nationalization or expropriation as the benchmark of takings.  The taking away or restricting of any property right which in itself or in conjunction with other rights constitutes an investment.

20.  Outright nationalizations in all economic sectors.  Outright nationalization on industry-wide basis.  Large scale taking of land by the State.

21.  Specific takings.  Creeping expropriation.  Regulatory takings.

22.  Public purpose  Non-discrimination  Compensation  The due process requirement

23.  Avenues for redress  Petition/Negotiation  Civil action in the national court Kelo v. City of New London, 545 U.S. 469 (2005545 U.S. 4692005  International arbitration

24.  Judicial review  Adequate/Just compensation

25. THE END