A public trust doctrine for Hong Kong

Abstract

The public trust doctrine is a traditional common law principle stating that certain resources are common property, and that the state is legally obligated to control and manage them for the welfare of the public, subject only to the paramount and reasonable needs of other users. This article explores the enforceability of the public trust doctrine in common law and its possible recognition in Hong Kong. This doctrine is controversial. This article first investigates the evolution of the doctrine. Secondly, it discusses the limits of private property rights. Thirdly, it analyses the common law jurisprudence in determining whether a trust obligation can be imposed on the state. The fundamental issue is whether the people have an inherent or vested right to the use and enjoyment of natural resources. A stronger case can be made when there is a constitutional home for the doctrine. Fourthly, this article surveys the common law jurisdictions which recognise this doctrine. By way of conclusion, the role of the judiciary in environmental protection will be discussed.